Poultney v. City of Lafayette

44 U.S. 81

• Court: New York Supreme Court
• Decided: January 15, 1845
• Status: Published

Opinion

Mr. Justice McLEAN

delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court for the eastern -district of Louisiana.

To determine the point brought up by the appeal, it is unnecessary to state the substance of the bill-or answers. On motion, the Circuit Court dismissed the bill, under the 21st nlle, because the “complainants had not set - down, if or hearing the pleas filed in this ease, nor filed replication to the answers, although more than two terms-of the-court had elapsed since filing of the same.”

The rule referred to is,- “if the.plaintiff shall not reply to, or set for hearing any plea or demurrer béfore the second term of the court after filing the same, the bill may be dismissed, with costs.” No plea had been filed in .the case, and'the demurrer filed had been overruled, so that the rule did not apply to the case as it stood at the time of the dismissal. The rule can only apply to demurrers and pleas technically so called. And there is no other rule of proceeding which authorized the décree of the court. The complainant may, if he choose, go to the hearing on the bill and answer.

The decree of the Circuit Court is reversed, and the cause is remanded for further proceedings.