A. T. Davis v. Union Meeting House Society
| Decision Date | 17 September 1918 |
| Citation | 105 A. 29,92 Vt. 402 |
| Parties | A. T. DAVIS v. UNION MEETING HOUSE SOCIETY |
| Court | Vermont Supreme Court |
February Term, 1918.
APPEAL IN CHANCERY. Heard on bill, answer, replication, inspection of the premises, testimony of witnesses and argument of counsel at the September Term, 1916, Washington County Stanton, Chancellor. Decree sustaining the demurrer and dismissing the bill with costs. The plaintiff appealed. The opinion states the facts.
Let the case stand for argument on the merits.
J Ward Carver and Erwin M. Harvey for the plaintiff.
John W. Gordon for the defendant.
Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.
The bill was brought to restrain the defendant from prosecuting a suit at law pending in Washington county court to recover for trespasses alleged to have been committed by this plaintiff on premises occupied by the defendant and to determine plaintiff's equitable rights in the premises and restrain the defendant from further interfering with such rights. The defendant answered and insisted in the answer on special matter by way of demurrer. The case is here on plaintiff's appeal from the following decretal order: "The cause was heard by the chancellor on bill, answer, replication, inspection of the premises, testimony of witnesses and arguments of counsel on both sides, and thereupon it is adjudged, ordered and decreed that the injunction heretofore issued in said cause be dissolved; that the defendant's demurrer to plaintiff's bill of complaint is adjudged sufficient and is sustained; that the bill of complaint in this cause be dismissed; and it is dismissed, with costs to the defendant."
Inspection of the record shows that the bill and subpoena were dated February 27, 1915; that the chancellor ordered the defendant to appear before him March 10, 1915, to show cause why the prayer of the bill for a temporary injunction should not be granted; that defendant's answer was filed March 10, 1915; and that the same day the temporary injunction was granted and became effective by the filing of the injunction bond. The case was tried by the chancellor at the September Term, 1916, and the findings of fact and decretal order were filed January 22, 1917. The plaintiff reserved certain exceptions which, it will be observed, are not expressly overruled in the decretal order. No mention is made of the demurrer outside of what appears in the decretal order.
The general rule in chancery is that the demurrant must bring his demurrer on for hearing before the merits are gone into or he will be held to have waived it. Fairbanks's Adm'r v. Keiser, 86 Vt. 210, 213, 84 A 610. Where the demurrant desires to avail himself on review of a demurrer which has been heard and overruled, the usual practice is to ask for an order reserving the benefit thereof until the final hearing. It has been held that the benefit of a demurrer may be treated as impliedly reserved where it has been heard and overruled followed by a hearing on the merits. White River Sav. Bk. v. Capital Sav. Bk., 77 Vt. 123, 129, 59 A. 197, 107 Am. St. Rep. 754. In Fairbank's Adm'r v. Keiser, the defendants were allowed to file answers containing demurrers,...
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