Weil v. Harburger

This is a motion "for an order overruling the amended answer herein as frivolous and for judgment as prayed for in the complaint herein.” The complaint is in equity, with 15.para-graphs and 25 folios. The amended answer has 34 paragraphs and 50 folios.

Originally, on a motion of this kind, the judge in the court of first instance took the pleadings, listened to no argument, and if he could see, by reading them and applying his own knowledge of the law applicable to the case, that there was no- defense, the motion was granted. Of course, the success of the motion' depended largely upon the experience of the particular judge before whom it happened to be brought. If it had been such as to make him personally familiar with the topic under consideration, he would grant the motion, when another judge of equal ability, experience, and general information would deny it. If he granted the motion, and defendant appealed, the question on appeal was simply whether the judgment was right or wrong; for it was held that a judgment should never be reversed because entered in one form of proceeding, on the ground that the answer was very bad, only to be re-entered on the same pleadings in another form of proceeding, because, although not very bad, it was still bad. At a later period, however, the practice'changed, and the 'judges of first instance began to hear argument as to whether the answer was very bad, or just bad, or tenable. Finally, and comparatively recently, the appellate courts began the practice of considering the case as if it were at Special Term, and reversing judgments upon answers that were bad, because they were not very bad.

Thus the practice which had been adopted in early times to speed the disposition of cases became in one state (for I believe its development was not the same everywhere) often one of the delays of the law. A motion would be made for judgment upon a demurrer or answer, and the defendant at the hearing would be unable to present