Miller v. Clark

49 F. 695, 1892 U.S. App. LEXIS 1648

Opinion

Shipman, District Judge.

This is a motion to strike from the files the supplemental bill in this case, which alleges the payment of costs, upon the ground that the payment and the supplemental bill were delayed for an unreasonable time. Two other grounds were suggested in the motion, but were not pressed in the argument. In the decision, which was made after the argument of demurrer, and which was filed November 3,1891, I said that the omission to state the payment of costs in the bill ivas not a subject of demurrer, for tlie rule requiring payment of costs was one of procedure, rather than jurisdictional, but could bo taken advantage of by a motion to stay proceedings; and also said: “Before a decision upon the other questions contained in the demurrer, proceedings under the bill of review should bo stayed until the mandate of the supreme court has been complied with,” etc. . No order of stay asked for, and therefore no time was fixed for the payment of costs. They were paid January 15, 1892, ánd the supplemental hill was filed on the next day, — a delay of two months and twelve days. Inasmuch as no order was asked or made fixing the time of payment, and as the defendants’ counsel accepted the costs, when paid, I cannot say that this delay debars the petitioner in the hill of review from filing her supplemental bill. The decision upon the demurrer was postponed until this payment should be made or excused. Inasmuch as the case was argued some time ago, if the respective counsel have any views in addition to those which were contained in their briefs, I should be glad to receive them in writing.