Stokes v. Farnsworth

• Decision Date: 12 February 1900
• Docket Number: 327.
• Citation: 99 F. 836
• Parties: STOKES et al. v. FARNSWORTH.
• Court: U.S. District Court — District of Utah

99 F. 836

STOKES et al. v. FARNSWORTH.

No. 327.

United States Circuit Court, D. Utah.

February 12, 1900

Dey &amp Street, for plaintiffs.

Barlow Ferguson, Pierce, Critchlow & Barrette, for defendant.

MARSHALL District Judge.

Exceptions to defendant's original answer were sustained. Thereafter, leave of court having been obtained, defendant filed an amended answer, setting up a new affirmative defense. The plaintiffs move to take from the files the amended answer, and also to strike out the new defense, on the grounds: (1) That it was irregularly filed, in that no special permission of the court was obtained; (2) that the new defense is impertinent, irrelevant, sham, rambling, and verbose. Was there any irregularity in the making of the amendment of which the plaintiffs can take advantage? The minutes of the court show that on the sustaining of the exceptions to the original answer counsel for the defendant asked leave to file an amended answer, but did not indicate the particular amendments desired. The counsel for the plaintiffs then present consented that leave should be granted, and an order was thereupon made giving leave to the defendant to file an amended answer. Undoubtedly, a new defense cannot be interposed by a defendant as of course. Such an amendment would ordinarily only be allowed on motion supported by affidavit showing good cause and on notice. The proposed amendment should also be presented to the court, and the order permitting an amendment should specify the amendment permitted. But all of these proceedings may be waived; and where the plaintiffs, as in this case, consent that the defendant may file an answer, amended as he may be advised it is too late to object upon the filing of the new answer that the leave granted did not specify the particular amendments made. The setting up of a new defense in an answer is a well-settled mode of amending the answer (Eq. Rule 60), and in this case no replication had been filed, nor the cause set down for a hearing upon the bill and answer. If, instead of granting leave to amend, the order had simply directed the defendant to further answer the plaintiffs' bill, an answer specially directed to the matters excepted to, and restricted to supplying the deficiencies found to exist in the first answer, would have been intended. Board of Sup'rs of Fulton Co. v. Mississippi & W.R. Co., 21 Ill. 338. The objection of irregularity cannot be sustained.

2. Under the objection for impertinence the plaintiffs seek to raise the question whether the new defense interposed is in fact a defense to the suit; in other words, to make this motion serve the purposes of a demurrer at common law. A demurrer to an answer in equity is not permitted (Banks v. Manchester, 128 U.S. 244, 9 Sup.Ct. 36, 32 L.Ed. 425), and neither an exception for impertinence nor a motion to expunge is an authorized mode of testing the validity of a substantive defense not responsive to the bill (Adams v. Iron Co. (C.C.) 6 Fed. 179; Grether v. Wright, 23 C.C.A. 498, 75 F. 742). Prof. Langdell says:

'As to the defenses in the answer, there is no way of raising immediately and directly the question whether they are good in law or not, there being no demurrer to an answer. If they are not good, the proof of them will be of no avail, and the plaintiff will have the full benefit of his objections at the hearing. ' Langd. Eq. Pl. (2d Ed.) Sec. 83.

In Shiras, Eq. Prac. Sec. 58, it is said:

'Exceptions to the answer do not perform the office of a demurrer in presenting the question whether the facts averred in the answer constituted a defense to the case made in the bill, and, as it is not permissible to file a demurrer to an answer, if it is desired to submit the case on the questions of law arising on the answer, the only method is by setting down the case for hearing on bill and answer.'

There is the practical inconvenience in setting a case down for hearing on bill...