Common Pleas of Lancaster Gounty Octoraro Water Co. v. Garrison et al. Equity practice-Answer-Demurrer. After answering the plaintiff's bill the defendant cannot file a demurrer without leave granted to withdraw the answer. Bill and answer. Demurrer. Equity Docket No. 6, page 253. John M. Groff, for defendant. August 23, 1919. Opinion by LANDIS, P. J. As I understand this case, a preliminary question is raised as to whether or not the demurrer can be considered, in view of the present condition of the record. It appears that, on August 7, 1918, the plaintiff filed its bill of complaint. On September 13, 1918, the defendants fully answered it, and the case was then placed upon the trial list, but was continued for sufficient cause. On February 15, 1919, a replication was duly filed, and no further proceedings were taken until June 6, 1919, when the defendants, without leave of court, and against the plaintiff's objection, filed the present demurrer. It has been stated that leave was asked of the court to withdraw the answer and file the demurrer; but I have no recollection on the subject, and the record contains no such statements. Whether or not leave was asked for, it apparently was not granted by the court. The general rule of law is, that an answer waives objections to the form and manner of proceeding, and if a defendant answers, he cannot generally thereafter demur. Leave must first be obtained to withdraw the answer, and leave will not be given where there has been great delay in making the application and further proceedings have been taken." Cyc. of Law and Procedure, Vol. 16, p. 264. In Evans v. Dunning, 3 Phila. 410, it was held that "after answer filed and amended bill, the defendant cannot demur generally to the amended bill." Sharswood, P. J., in delivering the opinion of the court, said: "It is true that advantage may be taken by demurrer of any impropriety in the amendment; as if a plaintiff answers his bill and states a matter which has arisen subsequent to the filing of the bill, and which consequently ought to be the subject of a supplemental bill. Brown v. Rigdon, I Atk. 291. Such a demurrer will be allowed even though a demurrer to the original bill has been overruled. Bancroft v. Wardens, 2 Bro. C. C. 66; 2 Dick. 672. The rule is also the same where the defense first put in is a plea, and the bill is afterwards amended. The amended bill may still be demurred to. Robertson v. Ld. Londonderry, 4 Sim. 226. A defendant, however, cannot after he has answered the VOL. XXXVII, No. 1 Octoraro Water Co. v. Garrison et al. original bill, if the plaintiff amends it, put in a general demurrer to the whole bill; because the answer to the original bill, being still on the record, will in fact overrule the demurrer. Atkinson v. Ramway, 1 Cox, 360." In Pancoast v. Reeves, 7 Phila. 383, it was held that the “defendant will not be allowed to withdraw his answer, in order to demur, after the case has been before the master for many years." The rules governing the equity practice, as adopted by the Supreme Court, are as follows: Rule 29 (p. 72): "The plaintiff shall be entitled in filing his bill to a rule on defendant to be entered of course in the prothonotary's office, to file his demurrer, or answer to the bill within thirty days after service of notice of such rule. . . .' Rule 31 (p. 74): "The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur to the whole bill or to part of it, and he may demur to part and answer as to the residue; but all issues of fact must be made by answer." Rule 35 (p. 74): "If, upon the hearing, any demurrer o plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable." Rule 36 (p. 74): If, upon the hearing, any demurrer is overruled, unless the court shall be satisfied that it was intended for vexation and delay, the defendant shall be required to answer the bill, or so much thereof as is covered by the demurrer, at such period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done. . . ." It, therefore, seems to me that the demurrer is improperly upon the record, and that the court has no authority at this time to pass upon its effect as a demurrer to the bill. I am accordingly of the opinion that it should be overruled, and this is now done. Demurrer overruled. Common Pleas of Lancaster County Galvin v. C. F. Bowman & Co. Depositions-Question of law involved in. In an action for damages for the refusal of the owner to comply with an option given by her agents to the plaintiff to purchase real estate, depositions of the owner were filed to the effect that authority given by her to the defendants was confined to a general power to sell and did not include any special power to give any option. Held, that these depositions were not objectionable on the ground that they involved a question of law. Exceptions to interrogatories, etc. April Term, 1919, No. 16. Willis G. Kendig, for defendant and exceptions. Andrew J. Frantz, contra. Galvin v. C. F. Bowman & Co. The interrogatories and answers objected to were as follows: Fifth. Did the power conferred by you upon your agents, C. F. Bowman & Company, the defendants herein, include a general authority to sell the aforesaid real estate, or did you expressly or impliedly confer any special power upon C. F. Bowman & Company, the defendants herein, for the purpose of disposing of the aforesaid real estate? Answer. The power and authority given by me to C. F. Bowman & Company was a general authority to sell the said real estae. I did not expressly or impliedly confer any special power upon C. F. Bowman & Company, the defendants herein, in connection with the sale or disposition of the said property. Sixth. In the disposal of your real estate situate at 139 E. Chestnut Street, Lancaster, Pa., did you give C. F. Bowman & Company, the defendants herein, the right, power or authority to extend to any prospective purchaser or said real estate a fifteen (15) day option to purchase said property? Answer. I did not at any time give to C. F. Bowman & Company any power or authority to extend to any prospective purchaser of said property a fifteen-day option or any other kind of option to purchase the said property. Seventh. In the disposal of your real estate, situate at 139 E. Chestnut Street, Lancaster, Pa., did you extend to your agents, C. F. Bowman & Company, the defendants herein, the right, power or authority to give to any prospective purchaser any option right whatever? Answer. I did not extend to my agents, C. F. Bowman & Company, the defendants in this suit, any right, power or authority whatever to give to any prospective purchaser any kind of option in connection with the disposal of said property, situate at 139 E. Chestnut Street, Lancaster, Pa. September 27, 1919. Opinion by LANDIS, P. J. On June 20, 1919, a rule was entered at the instance of the plaintiff for a commission to take the testimony of Alice M. Nabors, who resides at Montevallo, Shelby County, Alabama, and interrogatories were duly filed. A commission was on July 17, 1919, duly issued to William Lyman, Esq., a notary public, at the above place, after the service of the rule and interrogatories upon the attorneys for the respective parties, and on July 29, 1919, notice was duly given to counsel of the return of the said commission. On August 1, 1919, counsel for defendants filed exceptions to the fifth, sixth and seventh interrogatories and answers, and his right to maintain these exceptions is the question before the Court. An examination of the record shows that no exceptions were filed to the interrogatories prior to the issuing or return of the commission. But even if this had been done it would not have availed, for, in my judgment, there is nothing objectionable either in the interrogatories or in the answers thereto. For this reason the exceptions are dismissed. Exceptions dismissed. |