Holschumaker v. Etchells
| Citation | 74 A. 644,9 Del.Ch. 33 |
| Court | Court of Chancery of Delaware |
| Decision Date | 10 December 1909 |
| Parties | ALBERT J. H. HOLSCHUMAKER, CHARLES HOLSCHUMAKER, ELIZABETH M. SCHAFFER AND HENRY HOLSCHUMAKER, v. WILLIAM J. ETCHELLS, MARY A. MCCANN, HARRY I. GILLIS, Ex-sheriff of New Castle County, and HENRY STAFFORD, Sheriff of New Castle County |
MOTION TO DISMISS BILL FOR WANT OF EQUITY. The bill in this cause was filed by Albert J. H. Holschumaker and others, heirs at law and devisees under the will of William Holschumaker, to restrain the collection of a judgment obtained by the New Castle Water Works Company against Henry Holschumaker Administrator d. b. n. c. t. a. of William Holschumaker deceased, in an amicable action in the Superior Court for New Castle County. The original bill was filed September 5th 1906, and upon hearing of a rule on September 10th, 1906, a preliminary injunction was issued. On October 19th, 1906, an answer was filed, and on the same day a motion to dissolve the preliminary injunction was filed, but does not seem to have been argued. On July 8th, 1907, a demurrer was filed but not disposed of. On September 9th, 1907, an amended bill was filed, and on September 24th, 1907, an answer to the amended bill was filed by William J. Etchells and Mary A. McCann, and on the same day a motion to dissolve the preliminary injunction was filed. This latter motion does not seem to have been argued. On June 10th, 1908, an amendment was filed to the amended bill, simply praying for a subpoena for new parties made by the amended bill filed September 9th, 1907. To this amendment to the amended bill no answer was filed, if any was necessary. On October 6th, 1909, notice was filed of a motion to dismiss the bill for want of equity and a further motion on the same grounds that the preliminary injunction issued in the cause be dissolved. This motion was made orally on October 25th, 1909, and argued before the Chancellor by the solicitors and held under advisement.
The amended bill alleges that William Holschumaker died in 1888 and on April 9th, 1891, his son, Henry Holschumaker, was appointed administrator d. b. n. c. t. a.; that at the February term, 1899, judgment was recovered in the Superior Court for New Castle County against the administrator by an amicable action for $ 231.67, and on April 12th, 1906, the judgment was assigned to two of the defendants, William J. Etchells and Mary A. McCann; that the judgment was for rents for water alleged to have been furnished after the death of William Holschumaker to houses belonging to the complainants as devisees of William Holschumaker; that a writ of fieri facias was issued on the judgment and returned nulla bona, and a writ of venditioni exponas was issued returnable to the September term, 1906, and pursuant to the writ the Sheriff had offered the real estate late of William Holschumaker, deceased, for sale. The bill then alleges that the enforcement of the judgment against lands of the complainants was fraudulent; that the first account of Annie Holschumaker, administrator d. b. n. c. t. a., showed a balance due the estate by the administrator to be $ 3,976.03; that it was inequitable to subject the real estate for sale until the personal estate of the decedent in the hands of the administrator had been exhausted; and, further, that the administrator, on December 29th, 1906, after the issuance of the venditioni exponas applied to the Orphans' Court for leave to sell the land of the decedent to pay debts of the decedent, and that this petition was still pending. Upon filing the bill a restraining order was issued. The complainants are devisees under the will of William Holschumaker.
Bill dismissed.
Martin E. Smith, for the complainants.
William H. Cooper, Jr., for the defendants.
The motion to dismiss the bill will first be considered. A motion to dismiss for want of equity is in the nature of a demurrer to the bill, all the allegations of it being assumed to be true for the purpose of the motion. It is an undesirable practice to substitute for a demurrer to a bill a motion to dismiss it for want of equity, and, generally speaking, it will not be allowed. An orderly course of pleading to a defective bill is to demur to it, for in this way the defects of the bill are brought forward at the earliest step in the litigation, as they should be, and under the safeguard of a certificate of counsel and the affidavit of the defendants. After an answer is filed a motion to dismiss the bill for want of equity should not be entertained, except upon terms. But, however undesirable the practice, such motions have been entertained here after answer, and the motion has been considered in the case at bar.
The amended bill is demurrable for want of equity. The prayer of the bill is that the judgment may be decreed to be null and void, in so far as it affects the title of the heirs and devisees to the real estate, and for an injunction to restrain the sale of the real estate under the judgment. It does not allege that the judgment was recovered by fraud, collusion, or any other misconduct on the part of the administrator. It is alleged simply that the enforcement of the judgment against the...
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