Sevier v. White

21 F. Cas. 1106

Opinion

BY THE COURT.

This day came the parties, by their attorneys, and the defendants demurred to plaintiff’s declaration, and issue was joined thereon; and the matters of law arising thereon being argued, it seems to the court that the law is for the plaintiff, and for the following reasons the demurrer is oyer-ruled: “Which special demurrer to declaration was overruled by the court, on the ground that the general averment of the declaration that the persons declared against were defendants to the suit in which the decree was rendered in the state of Arkansas is equivalent to the allegation that they were duly parties to said suit either by the service of process upon them or by their voluntary appearance and pleading in said suit; so that said general averment may be traversed by plea that the defendants to this action were not bound or affected by said decree in the circuit court of Desha county, in Arkansas, because not served with any process, or bound by any appearance or pleading in said suit;” and thereupon the plaintiff asked and obtained leave to file an additional count to this declaration, which is done, and the defendants take time to plead to the same, and this cause is continued.