The State of New Jersey v. the People of the State of the York
| Decision Date | 01 January 1832 |
| Citation | 31 U.S. 323,6 Pet. 323,8 L.Ed. 414 |
| Parties | THE STATE OF NEW JERSEY v. THE PEOPLE OF THE STATE OF THE YORK |
| Court | U.S. Supreme Court |
MR FRELINGHUYSEN, with whom was Mr Wirt, stated, that at the last court an order was made, giving the state of New York leave to appear on the second day of this term and answer the bill of the complainants; and if there should be no appearance, the court would proceed to hear the cause on the part of the complainants, and to decree on the matter of the bill. 5 Peters, 291. Instead of appearing, the state of New York has demurred; and this mode of proceeding is resisted in a written argument, which is now handed to the court.
Mr Beardsley stated, that he had filed and served the demurrer for the attorney-general of New York. He was not counsel in this cause for New York, nor was any counsel, to his knowledge, in the city who represented that state. The attorney-general was not expected until the argument of the demurrer should come on. As he had filed the demurrer as agent for the attorney-general, he would, with the permission of the court, make a few suggestions.
He asked if the court would entertain a motion of this kind without notice. The application is to take a paper off the files of the court, not to prevent its being filed. It has been filed. The attorney-general of New York, no doubt, considers the demurrer as an appearance in the cause; although it contains a suggestion that the court has no jurisdiction. Such a suggestion must at all times be unobjectionable, but in this case it was peculiarly proper; as this court, in granting the order of the last term observed, that 'the question of proceeding to a final decree would be considered as not conclusively settled, until the cause should come on to be heard in chief.' The demurrer must have been intended as an appearance; and is one in its terms, as will be seen by a reference to it.
It may be, that no appearance has been formally entered on the minutes of the clerk: he had not looked at those minutes. The entry of an appearance was mere form; and the filing of a demurrer was ample authority for making such entry, if at all necessary.
In England, the filing a demurrer is considered as an appearance in the cause. Upon this, the authorities, he supposed, were uniform.
The terms of the demurrer show that it constitutes an appearance. It asserts that the people of New York are not bound to appear, and insists that they should not be prejudiced by appearing. The conclusion prays 'judgment,' and 'judgment whether any further answer should be required.' This is placing the case upon the judgment of the court; and must be considered, from the very force and meaning of the terms, as an appearance in the cause, and an authority to enter an appearance with the clerk.
The order of this court, which was granted at last term, was that the people of the state of New York shall 'appear' and 'answer the bill of the complainant.' That is, that they shall appear and defend; and the court, by granting that rule, did not intend to decide on the jurisdiction of the court in the case, or to preclude the defendants from putting in a demurrer, if they thought proper to do so. The order was not intended to discriminate, strictly, between an answer and a demurrer.
No rules have been established for regulating the course of proceedings in such cases: the English rules may therefore be appealed to and invoked. Why shall not this court permit a demurrer to be filed? And why may not this form be pursued, as well as a plea or answer, setting up matter of fact? The order of the court was not intended to prevent the proceedings in the case being in any form which might be thought proper, in order to present the question of jurisdiction and the merits of the case. A demurrer admits all facts well stated in the bill. Why require an answer, if the defendants are willing to admit the facts alleged? Certainly the plaintiff should not object. In New York, when a bill is filed, and process duly served, the order is to appear and answer; and not that he answer, demur or plead: such he supposed was the order in the English chancery. No one was ever defaulted in such case, by reason of his filing a demurrer or plea instead of an answer. A demurrer is indeed an answer in law, and so strictly and literally within the order.
If this is the interpretation of the rule granted at last term, the demurrer is a sufficient compliance with the rule. If it requires the signature of a solicitor of this court, as such, it will no doubt have such a signature: it is contended, however, that the signature of the attorney-general, known by the records of the court to be no of its solicitors, is sufficient, although he has not in terms signed as solicitor.
In a case like this, the signature of the attorney-general, as such,...
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