Holt v. Daniels

• Decision Date: 01 May 1889
• Citation: 17 A. 786,61 Vt. 89
• Parties: J. H. HOLT v. SAMUEL DANIELS
• Court: Vermont Supreme Court

17 A. 786

61 Vt. 89

J. H. HOLT v. SAMUEL DANIELS

Supreme Court of Vermont

May 1, 1889

GENERAL TERM, OCTOBER, 1888.

The decree is reversed and the cause remanded with a mandate to enter a decree for the orator to recover the sum of $ 42.98 reported by the master, with interest thereon from March 1 1884, and that the further prosecution of the suit at law in favor of the defendant against the orator mentioned in the pleadings be perpetually enjoined.

Heath & Fay, for the orator.

OPINION

POWERS

The defendant, by a demurrer interposed into his answer, raises the question of the jurisdiction of the Court to entertain the bill. The propriety of this mode of pleading has been considered of late, and the effort has been to adhere to the rules of pleading laid down in the text books and best considered cases.

The respective functions of a demurrer and an answer are entirely distinct and one cannot take the place of the other. The answer serves the double purpose of pleading and evidence. So far as it sets up matter as a bar it is a pleading. So far as it serves the complainant's purpose by discovering facts, it is a deposition. If the defendant would waive making an answer, he may demur or plead. The object of a demurrer or plea, as a general rule, is to excuse the defendant from answering the bill on its merits. Both are dilatory pleadings, a demurrer being proper if the fault of the complainant's case is apparent from the face of the bill, and a plea being proper if the fault must be shown by bringing matter dehors upon the record. Accordingly it has been generally said in the books that a party cannot demur or plead and answer the same matter, but he may demur to one part of the bill, plead to another and answer to another. If he answers to the same part that he demurs to his answer will overrule his demurrer. The rule is the same at law. 1 Chit. Pl. 512. The reason for the rule is thus given by Gilbert, Forum Rom. 58, in speaking of dilatory defenses, "all these pleas with us are to be put ante litem contestam, because they are pleas only why you should not answer, and therefore if you answer to anything to which you may plead, you overrule your plea for your plea is only why you should not contest and answer so that if you answer, your plea is waived." This rule is laid down everywhere as expressive of the true function of a demurrer or plea in its relation to the answer. Mitford (Tyler's Ed.) 304, 305, 411, Beames' Pl. in Eq. 37; Whaley v. Dawson, 2 Sch. & Lefr. 371; Jones v. Earl of Strafford, 3 P. Wms. 81; Oliver v. Piatt, 44 U.S. 333, 3 HOW 333, 11 L.Ed. 622; Clark v. Phelps, 6 Johns. Ch. 214; Wade v. Pulsifer, 54 Vt. 45.

Incorporating a demurrer into an answer is often done and no violation of the rule is occasioned if the demurrer is left for consideration as if it stood alone. In the old precedents instances may be found of demurrers and pleas incorporated into answers, but in each case the answer was provisional, the plea ending with a demand for judgment, and then proceeding, "and if this defendant shall by order of this honorable court be compelled to make any other answer to the said bill, etc., then and not otherwise the defendant saving, etc., answereth and saith," going through the answer as if no plea had been put in. The more modern practice, however, and the one sanctioned by Mitford and other standard writers, is to file each pleading by itself. But in all cases the demurrer should be brought to a hearing before the cause is tried on its merits. Wade v. Pulsifer, 54 Vt. and cases there cited.

In this case it is urged that a court of equity has no jurisdiction as a court of law could give the orator an adequate remedy. This objection, if valid, is apparent upon the face of the bill and so is the subject of a demurrer, and if it be sustained the case is at an end. But an objection to the jurisdiction of the court, if the court has...