Miller & Lux v. Rickey

• Decision Date: 06 July 1903
• Docket Number: 731.
• Citation: 123 F. 604
• Parties: MILLER & LUX v. RICKEY et al.
• Court: U.S. District Court — District of Nevada

123 F. 604

MILLER & LUX v. RICKEY et al.

No. 731.

United States Circuit Court, D. Nevada.

July 6, 1903

W. C Van Fleet and W. B. Treadwell, for complainant.

Trenmor Coffin, for defendant Rickey.

Mack &amp Farrington, for defendants Simpson et al.

HAWLEY District Judge.

This suit is brought by Miller & Lux against about 150 defendants to restrain them from diverting certain waters. To the bill of complaint, the defendants Rickey and Simpson et al appearing in different groups, interposed demurrers and also filed pleas in abatement. The complainant notified these defendant (1) that it would 'move the court to strike from the files your demurrer to the bill of complaint herein on the ground that the same is overruled and waived by your plea and pleas to said bill filed therewith,' and (2) that it would also 'move the court to strike from the files your plea or pleas to said bill on the ground that said plea or pleas are insufficient and invalid for duplicity, in that several pleas, not tending to the same point, have been filed by you without leave of the court, and that, in case the court should deny said motion, said complainant will move the court on the same ground for an order requiring you to elect on which of said pleas you will rely. ' These motions were regularly made and argued by the respective counsel, and present several important questions with reference to the proper methods of procedure that ought to be pursued by the court in the disposition of the demurrers and pleas. At the outset it must be remembered that the merits of the demurrers or pleas are not before the court for decision. Some suggestions have been made of supposed hardships, benefits, or advantages that might attach to one party or the other if the motions are sustained, and an earnest appeal is made for the court to exercise a sound discretion in order to protect the interests of the numerous parties to this suit. Parties must be governed by the character of the pleadings they have voluntarily filed. It is the duty of the court to determine the effect of these pleadings, and the disposition that should be made thereof.

The motions are made upon the ground that the demurrers and pleas go to the whole bill. This portion is combated by the defendants, who claim that their demurrers are to a part of the bill only. If the demurrers are to the whole bill, the motion to strike the same from the files must be granted; if to a part only, the motion should be denied. The demurrers of the several defendants first state 'that the said complainant has not in and by the said bill made or stated any such cause as doth or ought to entitle said complainant to any such relief, as is thereby sought and prayed for from or against this defendant,' and then for specific and particular causes of demurrer set out several specific subdivisions, wherein certain parts and portions of the averments in the bill are claimed to be insufficient, defective, or uncertain. In the course of the general framework of the demurrers are found sections or subdivisions which are specifically directed to certain paragraphs in the bill, and others that go to the whole bill as well as to specific parts thereof. For instance: 'That said paragraph and said bill wholly fails to show for what purposes or purpose said corporation was formed. * * * This defendant shows that said paragraph and said bill are each not sufficiently definite or certain in the respect hereinabove specified. ' Again: 'This defendant further avers and shows that said bill, and particularly paragraph eleven thereof, is not sufficiently definite and certain. * * * Said bill fails to show where said river rises or empties. ' Then again: 'This defendant further avers and shows that said bill, and each and every paragraph thereof, * * * fails to show,' etc. Wherefore defendant demurs, and 'demands the judgment of this court whether he shall be compelled to make any further or other answer to the said bill or to such parts of said bill as are so demurred to as aforesaid, and prays to be hence dismissed with his costs,' etc.

1. Is it not apparent from these references, common to both demurrers, without any reference to other points, that the demurrers must be treated as being to the whole bill, notwithstanding the fact that certain portions thereof are directed to certain parts thereof only, and that, having filed pleas to the whole bill, the demurrers are overruled and waived by the filing of the pleas? The drift of the decisions is to the effect that the pleader ought not to so draft his plea or demurrer as to leave it doubtful whether it applies to the whole bill or only to a part of the bill, but should use appropriate words and declarations to show clearly to what portion it does apply. It ought in all cases to be precisely stated what parts of the bill defendant refuses to answer, and what specific part or portion he demurs to. Devonsher v. Newenham, 2 Shoales Lefroy's Rep. 199, 205; Metcalf v. Brown, 5 Price Rep. 360; Jones v. Earl of Strafford, 3 Peere Williams R. 79, 80; Weatherhead v. Blackburn, 2 Ves. 121; Chetwynd v. Lindon, 2 Ves. Sen. 451; Clancy v. Craine, 17 N.C. 363; Bruen v. Bruen, 4 Edw. Ch. 640, 642; Van Hook v. Whitlock, 3 Paige, 409, 418; Leacraft v. Demprey, 4 Paige, 124; Jarvis v. Palmer, 11 Paige, 650, 657, 659; 1 Daniel Ch. P. & Pr. (6th Ed.) 608, 610, 787; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Railroad v. Macomb (C. C.) 2 Fed. 18, 20; Crescent City Live Stock Co. v. Butchers' Union Co. (C. C.) 12 F. 225, 226; United States v. American Bell Telephone Co. (C. C.) 30 F. 523; Marshall v. Otto (C. C.) 59 F. 249, 252.

In the early case of Devonsher v. Newenham, supra, decided in 1804, the Lord Chancellor said:

'The cases on the subject have clearly determined that the demurrer must express in the clearest manner what it is that you demur to. It has been repeatedly said that where a defendant demurs to part, and answers to part, of a bill, the court is not to be put to the trouble of looking into the bill or answer to see what is covered by the demurrer, but that it ought to be expressed in clear and precise terms what it is that the party refuses to answer, so that the master, upon a reference of the answer to him upon exceptions, should be able to ascertain precisely how far the demurrer goes, and what is to be answered. And I cannot agree that it is a proper way of demurring to say that the defendant answers to such and such particular facts, and demurs to all the rest of a bill; for this would put the master to great difficulty in saying what was demurred to, and whether the answer was sufficient or otherwise. The defendant ought to demur to a particular part of the bill, specifying it precisely, and answer to all the rest.'

In Jarvis v. Palmer, supra, the chancellor said:

'But the rule of chancery pleading is such on this subject that, if the demurrer does not go to the whole bill, it must clearly express the particular parts which it is designed to cover; so that upon a reference of the answer to the residue of the bill, upon exceptions for insufficiency, the master may be able to ascertain precisely how far the demurrer goes, and how much of the bill remains to be answered. * * * And as a demurrer cannot be allowed in part, where it is too broad, if any part of the matter covered by the demurrer is also covered by a plea or answer, the whole demurrer is overruled by such plea or answer.'

In Crescent City Live Stock Co. v. Butchers' Union Co., supra, the court said:

'Under the thirty-second equity rule a defendant may demur to part of a bill, plead to part, and answer as to the residue. Under the thirty-seventh equity rule no demurrer or plea shall be held bad and overruled upon argument only, because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. But we do not understand that there is any rule that allows a defendant to demur to the whole bill, plead to the whole bill, and answer to the whole bill at the same time. The effect of such pleading is that the plea is taken as waiving the demurrer, and the answer as waiving the plea.'

2. Are the pleas filed by defendants invalid for duplicity. Three pleas are independently set up by defendants without first asking the leave of the court: (1) For plea to the naming of parties, the defendants say 'that a large number of said defendants, to with, forty-one of said defendants, are not sued or joined as defendants by their true Christian names but are sued by their respective initials only.' (2) A plea to the jurisdiction of this court. (3) Plea to the want of and the absence of proper, necessary, and indispensable parties defendant to said bill of complaint. It is irregular, and, as a general rule, improper, to file more than one plea in an equity suit. The proper office of a plea, as expressed by the Supreme Court in cases hereafter cited, is not like an answer, to meet all the allegations of the bill, nor like a demurrer, admitting those allegations, to deny the equity of the bill; but it is to present...