Wright v. Barnard
| Decision Date | 21 December 1915 |
| Docket Number | 338. |
| Citation | 233 F. 329 |
| Parties | WRIGHT v. BARNARD et al. |
| Court | U.S. District Court — District of Delaware |
Andrew E. Sanborn, of Wilmington, Del., for complainant.
Robert H. Richards, of Wilmington, Del., for defendants.
The defendants have filed two motions; one for the dismissal of the bill, and the other for the transfer of the case to the law side of the court. The motion for the dismissal of the bill is made under rule 29 of the equity rules (198 F. xxvi 115 C.C.A. xxvi), which provides, among other things, as follows:
A motion to dismiss under the above rule is in the nature of a general demurrer. It is well settled that it is within the sound discretion of the court sitting in equity, when promotive of justice, to decline to decide a suit on demurrer to a bill and to overrule the demurrer and require an answer reserving to the defendant the right to claim and take by answer whatever advantage might otherwise have been secured by the demurrer. The motion to dismiss having taken the place of a demurrer, by parity of reasoning the above principle is applicable to the motion equally as it formerly was in the case of a demurrer. I am satisfied that under the circumstances disclosed in the bill the doing of even justice as between the parties is more likely to be secured by leaving the merits of the case to be disposed of after the making of answer than by now dealing with the merits as disclosed in the bill. The case is not sufficiently developed at this stage to allow the questions involved in the motion to dismiss now to be satisfactorily determined. The motion to dismiss must, therefore, be denied, reserving to the defendants the right to take by answer whatever advantage might otherwise have been secured by the motion.
The motion to transfer the case to the law side of the court is based upon rule 22 of the rules in equity (198 F. xxiv, 115 C.C.A. xxiv) which provides:
'If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential.'
With the exception of the balance of salary claimed by the complainant, I am not prepared to hold that the subject-matter of the suit as disclosed by the bill is not properly cognizable in equity. Unless the law furnishes a complete and adequate remedy, jurisdiction in equity exists. Boyce's Executors v. Grundy, 3 Pet. 210, 215, 7 L.Ed. 655; Watson v. Sutherland, 5 Wall. 74, 78, 18 L.Ed....
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