Bedell v. Bedell — 2 Barb. Ch. 99

Majority

p. 99

Bedell vs. Bedell.

Headnote

After a defendant has obtained a chamber -order from a vice chancellor granting him farther time to answer, he cannot put in a demurrer to the bill, without special leave of the court.

But this principle does not apply to a case of the extension of the time by the voluntary stipulation of the complainant’s solicitor.

If, however, under a stipulation extending the time to answer, a defendant puts in a •demurrer which is clearly frivolous, it will be taken from the files.

This was an application on the part of the complainant to take the demurrer, filed by the defendant, off the files of the court, with the costs of the motion; and for such other or further order or relief as the court should think proper to grant The bill stated that the complainant and defendant were joint owners of a schooner, engaged in the transportation of passengers and freight between New-York and Norfolk, under the charge of the defendant. The bill charged that the defendant had received all the net earnings of the schooner since the first of December, 1843, amounting to several thousand dollars, and that he had not accounted for the same, or any part thereof, to the complainant; and that he was continuing to receive and apply the whole profits and earnings of the schooner to his own use. The complainant therefore prayed for an account of the profits and earnings of the schooner, and that the defendant might be decreed to pay him his share of the same, and for such other relief as the complainant was entitled to upon the case made by the bill. The complainant also prayed for an injunction and receiver.

The bill was served upon the defendant’s solicitor on the 18th of June, 1846, with a notice of an order that the defendant answer the same within forty day's, or that the bill should be taken as confessed. On the last day allowed by the order for answering the bill, the defendant’s solicitor obtained a stipulation, from the adverse party, giving to the defendant forty days further time to answer the complainant’s bill. And two or three days after the expiration of the said extended time, the defendant’s solicitor filed a general demurrer to the bill, for want

p. 100

of equity, and sent a copy to the complainant’s solicitor; who thereupon gave notice that he would not accept of a demurrer.

O. L. Barbour, for the complainant.

J. Rhoades, for the defendant.

It is settled that the defendant cannot put in a demurrer to a bill without special leave, after he has obtained a chamber order from a vice chancellor giving time to answer. (Burrall v. Raineteaux, 2 Paige’s Rep. 331.) I am' not aware, however, that this principle has ever, been applied to the case of the extension of the time by the .voluntary stipulation of the complainant’s solicitor. Nor. is it .necessary that the principle should be thus applied. For the party, who agrees to extend the time, may always prevent the putting in of a demurrer after the time is thus extended, if he wishes to do so, by making it a part of the stipulation that the defendant shall not demur to the bill. And if the defendant, after applying for and accepting such a stipulation, for further time to answer merely, should put in a demurrer to the bill, it would be a matter of course for the court, upon a proper application for that p,impose, to order the demurrer to be taken off the files.

In the present case, the demurrer would be permitted to stand, although it was put in after the obtaining, a general stipulation, for further time to answer the bill, without, restriction, if it was not so manifestly frivolous. But as the demurrer is clearly frivolous, it was not only an abuse of the indulgence which had been granted to the.defendant, by the complainant’s solicitor, .in allowing him further time to answer the bill,, but it was also an abuse, of the practice of the court to put such a de murrer upon its files..

The motion to take .the demurrer from the files must therefore be granted, with ten dollars costs.