Mutual Reserve Fund Life Ass'n v. Bradbury

53 N.J. Eq. 643

• Court: Supreme Court of New Jersey
• Decided: November 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Beasley, C. J.

The bill was filed by the respondent, praying to be restored to membership in the association, which is the appellant in this case. To this bill a demurrer was put in, on the ground that it disclosed no ground for equitable intervention.

The argument for this issue came on for hearing before his honor Vice-Chancellor Pitney, who, at the. hearingj said: “ The bill is somewhat meagre in its statements, so much so that complainant’s counsel suggested an amendment. "Without determining whether it is sufficient in its present shape, I will consider it as if amended as suggested.”

What such suggested amendments were is not shown, but his honor proceeded forthwith to dispose of the case upon a statement of facts partly derived from the bill and partly, as is conjectured, from the amendments as proposed by the complainant.

The result was that the demurrer was overruled.

This court is of opinion that this procedure is radically wrong. Never before in the legal practice of this state has a demurrer to a bill been defeated by amendments. In the case before us it was defeated by proposed amendments. If a decree can be thus founded, it is plain that it would not be reviewable by this court, for there would be before us no record raising an issue for decision. The course pursued seems abnormal and has no semblance of a precedent.

Let the decree be reversed.

For reversal — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Mague, Van Syckel, Bogert, Brown, Smith, Talman — 11.

For affirmance — None.