Stanbery v. Baker
| Decision Date | 19 April 1897 |
| Parties | STANBERY v. BAKER et al. |
| Court | New Jersey Court of Chancery |
Bill by William S. Stanbery against Eva M. Baker and others. Motion by complainant to strike out demurrer to bill. Denied.
W. R. Ccddington, for motion.
W. S. Angleman, opposed.
This motion to strike out a demurrer is made upon the ground that it is frivolous, uncertain, and without merit The motion cannot be considered as made under the 213th rule, allowing objections to any pleading to be made upon motion; for such motion, under this rule, is one which is made in lieu of a demurrer or exception, and is a waiver of demurrer or exception, by the express provision of the rule. The rule, therefore, does not authorize a motion to strike out a demurrer. Nolan v. Nolan (N.J.Ch.) unreported (Chancellor McGill). The notice of motion here does not purport to have been given under the rule, and it may therefore be considered as based upon the general power of the court of chancery to strike out a frivolous demurrer on motion. The existence of such right is denied by the defendant, but I think the court of chancery has the power, inherent in every superior court, of striking out a demurrer clearly frivolous, or clearly intended for the sole purpose of delay. Bowman v. Marshall (1841) 9 Paige, 78, 80 (Chancellor Walworth). And this seems to be the opinion of Chancellor Green. Travers v. Ross (1862) 14 N.J.Eq. 254, 258. This right of the court of chancery to overrule and suppress pleadings as sham and frivolous would seem to be necessary for the due administration of justice, and to be the same in its character as the right constantly exercised in our superior courts of common law. Such right to strike out sham and frivolous pleas and demurrers in these courts has been expressly affirmed by our court of errors and appeals in Brown v. Warden (1882) 44 N.J.Law, 177, 178, in which case it was, moreover, held that the order striking out a demurrer as frivolous was not reviewable on error. And by a later case (Mershon v. Castree, 57 N.J.Law 484, 31 Atl. 602), the same rule was applied to the review of an order striking out a plea as sham and frivolous. In order to guard against the filing of frivolous demurrers to bills, the statute expressly requires (Chancery Act, § 27) an affidavit of defendant that the demurrer is interposed, not for delay, but in good faith, and also the certificate of counsel that he has read the bill, and that the demurrer is well founded. And, in order to avoid delay in the hearing of a demurrer, the...
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Scarano v. Scarano
...manifestly sham or frivolous similar in character and purpose to the right exercised in the superior courts of common law. Stanbery v. Baker, 55 N.J.Eq. 270, 37 A. 351; Weidmann Silk Dyeing Co. v. East Jersey Water Co., 88 N.J.Eq. 397, 102 A. 858, 1056, affirmed 89 N. J.Eq. 541, 105 A. 194;......
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Et Ux. v. Et Ux., 158/418.
...of its own motion should strike the answer as tending to obstruct due administration of justice and therefore frivolous. Stanbery v. Baker, 55 N.J.Eq. 270, 37 A. 351; Moore v. Moore, 74 N.J.Eq. 733, 70 A. 684; In re Beam, 93 N.J.Eq. 593, 117 A. 613; Strauss v. Rabe, 97 N.J.Eq. 208, 127 A. 1......
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Solomon v. Siperstein
...are such that the complainant will be prejudiced by the delay necessary to bring the case on regularly for hearing.’ Stanbery v. Baker, 55 N.J.Eq. 270, 272, 37 A. 351, 352. In a later case in that state the court, while following the Stanbery case, conceded that ‘an examination of the earli......
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S. Camden Trust Co. of Camden v. Stiefel
...484, 31 A. 602. In the Court of Chancery of this state a similar power appears to be recognized in Stanbery v. Baker, 55 N. J. Eq. 270, 37 A. 351, in which case a motion was entertained, though not allowed, to strike out a demurrer; and that view has been sanctioned in Moore v. Moore, 74 N.......