Town of Westminster v. Willard
| Decision Date | 10 June 1893 |
| Citation | 26 A. 952,65 Vt. 266 |
| Parties | TOWN OF WESTMINISTER v. HENRY A. WILLARD ET AL |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Bill to enjoin the prosecution of a suit at law. Heard upon the pleadings, and a master's report at the September term 1892. MUNSON, chancellor, decreed that the defendant Willard be perpetually enjoined from prosecuting his suit against the orator, and that the orator recover its costs. The defendants appeal.
Decree reversed, cause remanded, with directions to dismiss the bill, but without costs below to the defendants for they are largely to blame for this litigation. Barrett v. Sargeant, 18 Vt. 365.
L M. Read and Waterman, Martin & Hitt for the orator.
Before: ROSS, CH. J., TAFT, ROWELL AND START, JJ.
The defendants demurred in their answer for want of equity and for that the orator had an adequate remedy at law. The demurrer was seasonably brought on for hearing, when it was overruled, the bill adjudged sufficient, and an injunction ordered to issue, restraining the further prosecution of the defendant Willard's suit at law. Thereupon a special master was appointed, and the case proceeded to hearing before him on the merits, and on the coming in of his report a decree was entered for the orator, making perpetual the preliminary injunction. The defendants now seek to avail themselves in this court of the question of jurisdiction raised by the demurrer. To this the orator objects that by going to trial on the merits after their demurrer was overruled, they waived their demurrer, and cannot now raise the question of jurisdiction.
It used to be the practice when the demurrer was contained in the answer, not to bring it on till the case was heard on the merits, but to hear it then, and on appeal the whole case went up, demurrer and all. But latterly a new practice has been adopted, and now the demurrer must be brought on before the case is heard on the merits, otherwise it is waived, and the party loses the benefit of it altogether. This, although quite an innovation, is deemed the better practice, for obvious reasons.
The practice used to be, also, when a demurrer to the whole bill was overruled, to order the defendant to answer unless he obtained leave to put in a less extended demurrer or to plead. 1 Dan. Ch. Pr. 675*; 1 Smith's Ch. Pr. [*213]; and the court might, and often did, for good reason, reserve the right to raise the same question at the hearing. Jones v. Skipworth, 9 Beav. 237; Norman v. Stiby, 9 Beav. 560. But under the new rules in chancery, when a demurrer is overruled the bill should, regularly, be taken as confessed, and the matter thereof be proceded in and decreed accordingly if it can be done without an answer and is proper to be decreed; but if a discovery is required to enable the complainant to obtain a proper decree, the defendant will be ordered to answer as far as necessary for that purpose. Rule 17. Under this rule, considered with reference to the former practice, we think it a fair implication that when the court of chancery, on overruling a demurrer to the whole bill, does not to take the bill as confessed, but proceeds to appoint a master to try the case on its merits, as was done in this case, it intends to reserve the benefit of the demurrer till the hearing; otherwise, it is presumable that the court would have taken the bill as confessed, as the rule requires. This, we think, is in accord with the general notion of the profession, and in line with the practice that so long obtained of not treating the demurrer as waived by going to trial on the merits. In changing from one practice to another not fully defined and well understood, the analogies of the old practice should be observed as far as necessary to prevent surprise and to preserve to parties the...
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