Lichtenauer v. Cheney

8 F. 876

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: September 15, 1881
• Status: Published

Opinion

Nelson, D. J.

On June 18,1881, an order was obtained, on motion, giving the complainant leave to amend his bill on file in certain respects ; among others, so as to make the Exchange Bank of Canada a party defendant. The order was granted under equity rule 29, the first paragraph of which reads: “After an answer, plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill of complaint on or before the next rule-day,” etc.

The bill was regularly amended by the complainant within the time specified, and the amendments served as the order provided. A motion is now made by the solicitors, who appear for the Exchange Bank of Canada, to strike from the record the order, or set it aside, so as to get rid of the amendments. The bill, being properly amended, according to the equity practice must stand, and the defendants are required to answer, file a plea, or demur thereto.

It is not possible to get rid of the amendments regularly made by a motion to have the order under rule 29 set aside. The complainant is entitled under this rule to thus amend his bill of complaint, and the motion must be denied.

This decision does not meet the question which is urged upon the court by the defendant’s solicitor, viz.: that suit against the bank is barred by the limitation in the last clause of section 5057, Rev. St., (section 2, bankrupt act.)

If a demurrer is interposed, the bill as now framed against the bank would be dismissed for the reason that conceding every statement in the amendment true with reference to a secret fraud of the Exchange Bank of Canada, there is no allegation that it was discovered within the time allowed by the statute of limitations to avoid the bar.

The solicitors for the complainant urge that the allegation that the bank “now claims some interest,” etc., is sufficient, the amendment being allowed June 13, 1881; but non constat that the complainant only discovered the alleged fraud at that time.

If the complainant amends his bill in this respect, and a demurrer is interposed, I will hoar further argument, if desired, on the bar oí the statute.