Santiago y Muñiz v. Amangual

7 P.R. Fed. 251

Opinion

Hamilton, Judge,

delivered tlie following opinion:

In looking at tlie question when a general demurrer can be passed upon, we must take into consideration § 954 of the Revised Statutes of the United States, Comp. Stat. 1913, § 1591.. The opinion of the court expressed several times as to general demurrers, and which I may repeat briefly now, is that the conformity section of the Revised Statutes, § 914, Comp. Stat. 1913, § 1537, requires the Federal court, as far as may be, to follow the local practice, but where there is a Federal statute-which covers the subject, the Federal statute is superior. 2' Foster, Fed. Pr. 5th ed. ¶ 455. And that is the construction which this court has put upon § 954. ..It is looking to other-matters, but it incidentally refers, “in cases of demurrer (to-what) the party demurring specially sets down, together with his demurrer, as the cause thereof.” This seems to show that the policy of the Federal practice is that, wherever there is a demurrer, the ground must be specially set out, and that is the basis of the opinions I have rendered several times. And unless counsel can show me that I am wrong in this construction of § 954, it would not make much difference what the local regulation is. I will be glad to look at the citations, but with a Very strong prepossession. If this is such a general demurrer,, I should have to overrule it. As to how counsel could later bring up the point would be a matter for him to determine. It might be possible to raise it in the answer, I do not know. But the point right now is that counsel has filed what may be ai general demurrer, and it is a question whether I can under the; previous rulings of the court go into the matter; hut I will he glad to have further citations on it. The case then is submitted.

N. B. — The demurrer was overruled.