Huffmaster v. Payne

3 Shan. Cas. 119

Opinion

Deaderick, Ch. J.,

delivered the opinion of the court:

The questions in this case arise upon the demurrers of defendant Molsbee to the answer of ■ Starnes and wife, filed as a cross-bill. . The' only ground of demurrer necessary to be noticed i§ that defendant Molsbee is not a party complainant or defendant to the original bill. The chancellor sustained the demurrer and dismissed the cross-bill as to defendant IVlolsbee, and the complainants therein, Starnes and wife, have appealed to this court.

This court has held that in a proper case hew parties may be brought, into a cause by a cross-bill proper, depart ing from the rule laid down in 2 Danl. Chy. Pl. and Pr., 1543, and [Shields v. Barrow], 17 Howard (58 U. S.), 145 [15 L. ed., 163]; [Hildebrand v. Beasley], 1 Heis., 121.

We have also several times held where the answer is tiled as cross-bill, this will not be allowed. [Odom v. Odom], 2 Bax., 446; [Masson v. Anderson], 3 Bax., 300; [Hall v. Fowlkes], 9 Heis., 745.

This holding arises'from the phraseology of the statutes, and their_ manifest intent that this procedure, authorized alone by our statutes, should be used only as against a complainant. See Code, secs. 4323, 4409 [Shannon’s Code, secs. 6133, 6219],

The chancellor’s decree sustaining the demurrer to the cross-bill and dismissing the same as to defendant Molsbee is affirmed.