Bragg v. Whitcomb

1 Walk. Ch. 307

• Court: Michigan Court of Chancery
• Decided: September 15, 1843
• Status: Published

Opinion

The Chancellor.

The complainant, if he wished a further answer from either of the defendants, after the demurrers were overruled, should have excepted to the answer already put in by such defendant, within twenty days after the demurrer was overruled, under the thirty-fourth rule of the Court. The thirty-third rule is applicable to that class of cases only, where the plea or demurrer, or pleas or demurrers, (for there may be several pleas or demurrers to different parts of the bill,) extend to the whole of the bill; and not where the defendant both answers and pleads, or answers and demurs, and the plea or demurrer is overruled. Kuypers v. The Reformed Dutch Church, 6 Paige R. 570.

The order overruling the demurrers should have used the word demurrers instead of demurrer, as each of the defendants had put in a separate demurrer; and it should not have required the defendants to answer, and serve a copy of their answer, in forty days. The order should have been that the demurrers be overruled with costs, and nothing more. To correct the error in drawing up the former order, let an order be now entered, overruling the demurrers, with costs, and setting aside the order taking the bill as confessed.