Bedell v. Bedell

Motion to take demurrer of the defendant, from the files of the court. Under a stipulation signed by the complainant’s solicitor giving to the defendant forty days further time to answer the bill of complaint, the defendant’s solicitor put in a general demurrer to the bill. The complainant’s solicitor returned the copy served on him; insisting that under the terms of the stipulation the defendant had no right to file any thing but an answer. It was also insisted on the argument, that the demurrer was frivolous.

But considering the demurrer in this case clearly frivolous, the court granted the motion to take the same from the files, with ten dollars costs.

The chancellor said that although it is settled that a defendant , . . ., • i t r i • i cannot put m a demurrer without special leave, alter having obtained an order for further time to answer, yet that this principle has never been applied to the case of an extension of the time by the stipulation of the complainant’s solicitor. And that it is not necessary the principle should be thus applied; as the party granting an extension of time has it always in his power to prevent the putting in of a demurrer after the time is extended, by making it a part of the stipulation that the defendant shall not demur.