Wilcox v. Wilmington City Railway Co.

42 A. 704, 18 Del. 157, 2 Penne. 157, 1899 Del. LEXIS 22

• Court: Superior Court of Delaware
• Decided: May 8, 1899
• Docket: Action on the case No. 194
• Status: Published

Opinions

Spruance, J.:

This declaration contains four counts. In general, the theory of a declaration containing different counts is, that each count is for a different cause of action.

To each of the counts of the declaration the defendant’s attorney has filed a separate special demurrer, assigning in each special and different causes of demurrer.

He has a right to have an issue in law upon each one of these separate demurrers, and he has not got it. Instead of joining issue upon each of these special demurrers, the plaintiff’s attorneys have chosen to treat these four separate demurrers as one general demurrer to the declaration, which they are not.

This is irregular, and there is, so far as we know, no practice to sustain it. The argument in favor of it does not commend itself to the judgment of the Court, nor is it consistent with the general rules of pleading.

We think this joinder in demurrer should be stricken off, and that the case should be stricken from the trial list, because it was not at issue on the demurrers when it was put upon the list, and it is so ordered.