Chase Electric Const. Co. v. Columbia Const. Co.

136 F. 699, 1905 U.S. App. LEXIS 5174

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 8, 1905
• Docket: No. 51
• Status: Published

Opinion

HOEEAND, District Judge.

Before the defendant in this case had filed any answer, plea, or demurrer, the plaintiff, in a material matter,, amended its bill, but before any costs had been occasioned to defendant. There was no affidavit attached to the amendment, and for this reason a motion was made to strike it from the record. Under equity rule 38, the plaintiff was entitled to amend, as a matter of course, before answer, plea, or demurrer filed, and it was not necessary that the amendment proposed should be supported by affidavit. It has not been the practice here to require bills in equity, or the amendments thereto, to be supported by affidavit, when neither is to be used as evidence upon an application for a provisional injunction or in any other way, and this seems to be so in the other districts. In the case of Hughes v. Northern Pacific Railway Co. (C. C.) 18 Fed. 110, the court said:

“The objection that the bill is not verified is immaterial. A bill in equity is not required to be sworn to unless it is sought to be used as evidence upon an application for a provisional injunction or the like.”

The practice when an affidavit will be required in support of a bill in equity, or amendments thereto, is set forth in Foster’s Federal Practice (3d Fd.) § 87.- And in cases where ah affidavit is required there seems to be no imperative rule requiring the verification at the time it is signed, even where an injunction is prayed for. Black v. Allen Co. (C. C.) 42 Fed. 622, 9 L. R. A. 433.

Motion to strike off amendment is overruled, and the defendant required to answer within 10 days from this date.