Stevenson v. Morgan

53 A. 78, 63 N.J. Eq. 707, 18 Dickinson 707, 1902 N.J. Ch. LEXIS 67

• Court: New Jersey Court of Chancery
• Decided: October 3, 1902
• Status: Published

Opinion

Grey, V. C.

The counsel for complainant insists that the present motion to strike out is equivalent to a demurrer; that a demurrer to the bill having been overruled, the defendant may not again demur to the same bill; that the terms of the statute prescribe that if a plea or answer be overruled, no other plea or demurrer shall be thereafter received, but in such case the defendant shall answer, &c. Chancery act, P. L. of 1902 p. 519 § 24-

The phrasing of Rule 213, under which the defendant moves to strike out portions of the bill, shows that the motion to strike out is, if made to a bill, intended to take the place of a demurrer. The purpose of the rule is to afford a speedy method of bringing the cause to an issue, without the delay attendant upon setting a demurrer down for hearing at term. It is obvious that it was not intended, in case an objection to a bill had been formally made by a demurrer, which had been set down for argumont, argued and overruled, that the same objection could after-wards be made to the same bill by a motion to strike out. Such a course of procedure would be a useless and vexing annoyance, and would, by repeated presentations of the same question, cause further delay, and thus defeat the very object of the rule.

A motion to strike out part of a bill of complaint, under Rule 213, must be held to be equivalent to a demurrer to the bill.

All of the books on pleading agree that, after a demurrer has been overruled, a second demurrer to the same bill will not be allowed. Story Eq. PI. § J¡.60j Mitf. Eq. PI. *217. This is the rule. Its propriety, indeed its necessity, in general practice is apparent.

In the present case the defendant, by framing a general demurrer against the whole bill, asked the court to pass upon the sufficiency of the pleading as a statement of grounds for equitable relief. The court held that the bill of complaint, taken as a whole, did state a case which entitled the complainant to relief. By the present notice to strike out, the defendant objects to particular parts of tlie same bill, as impertinent, and as asking relief which it is not within the power of this court to give.

Considering the notice to strike out as a second demurrer to the same bill, the situation here presented is the same as that exhibited in the case of Baker v. Mellish, 11 Ves. *71. In that case a defendant had, in the first place, demurred to the whole bill. His demurrer was overruled, because too general. He then demurred to specific parts of the bill. Lord Eldon declared that this course of procedure could not be sustained; that the proper course, where it was desired to demur to part of a bill, in a case where a general demurrer to the whole bill had been overruled, was to obtain special leave from the court to present the demurrer to the specific parts which the defendant wished to question. His lordship declared that it was necessary that the court should judge whether the demurrer was the same, and seemed to have been of opinion that, where specific objections to parts of a bill have not been considered, because the demurrer was to the whole bill, leave should be given to challenge them by a second demurrer confined to those parts. Afterwards leave to demur to a particular part of the bill was granted. Baker v. Mellish, 11 Ves. *76. In New York, although the statute of that state directs that if a demurrer is overruled no other demurrer shall be received, the statute does not prevent a second demurrer confined to a part of the bill, if special leave to file it be first obtained. 1 Hoffm. Oh. Pr. 216.

In the present case the defendant, after his general demurrer to the bill has been overruled, seeks, by notice, to strike out specific parts of the bill, without having obtained any leave of the court again to challenge the bill by demurrer. The complainant is not noticed into court for any other purpose than the motion to strike out, and insists that the order overruling the original demurrer precludes this second challenge of the bill.

In the absence of special leave thus to question the bill a second time, the motion to strike out cannot be entertained.

An order refusing the motion will be advised.