Marsh v. Barney

Headnote

A demurrer is not an issuable plea -within the meaning of the 21st general rule of this court.

The defendant put in a demurrer to the plaintiff’s declaralion, but having omitted to obtain the signature of counsel to it, the plaintiff treated it as a nullity, entered the defendant’s default for not pleading, and noticed the cause for assessment; ¡on receiving which notice, the defendant’s attorney discovering his error, filed an affidavit of merits, tendered the costs of the default and a new demurrer signed by counsel, which the plaintiff’s attorney refused to receive, as not being an issuable plea, within the meaning of the rule as to opening defaults.

now moved to set aside the default with costs, insisting that the demurrer was an issuable plea; he cited Graham’s Pr. 143, and 1 Chitíy’s PI. 505.