Beavers v. C. A. Richardson & Co.

118 F. 320, 1902 U.S. App. LEXIS 5196

Opinion

MAXEY, District Judge.

The motion of the plaintiff is wholly insufficient to accomplish the purpose sought. By the twenty-ninth rule in equity it is provided:

“But after replication filed the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff’s submitting to such other terms as may be imposed by the judge for speeding the cause.”

It will be seen at a glance that the plaintiff has failed to observe the requirements of the rule, and it- is needless to remark that the rules of practice prescribed by the supreme court should be respected and properly enforced. Railroad Co. v. Bradleys, 10 Wall. 299, 19 L. Ed. 894. Obedience to their mandates will save labor to counsel and avoid confusion and unnecessary delays in the prosecution of causes. In the present case the motion of the plaintiff, being unsupported by an affidavit embodying the essential requisites of rule 29, must be denied. And, it appearing that the amendment was improvidently filed, it will be stricken from the files, without prejudice, however, to the right of the plaintiff to submit a motion or petition in proper form- if he be so advised.

Ordered accordingly.