Opinion
05-08-1907
SCHOETTLE v. HENGEN et al.
S. M. Roberts, for complainant. H. M. Cooper, for defendants.
Bill by Gustave A. Schoettle against Daniel P. Hengen and others, executors. Decree advised dismissing the bill.
S. M. Roberts, for complainant. H. M. Cooper, for defendants.
To the bill filed by complainant, defendants have filed a plea in bar, setting forth that a former bill of like effect was heretofore filed by complainant against defendants, and after hearing dismissed by decree of court. To that plea complainant filed a replication. At the hearing the evidence offered established the truth of the facts pleaded. Complainant now contends that the matter pleaded by defendants is insufficient in law to operate as a bar to the maintenance of the present bill.
It is well settled that this question cannot be raised in this manner. To contest the sufficiency of a plea the cause must be set down for hearing on bill and plea. This operates as a demurrer to the plea. But, when complainant files a replication to the plea, he admits its legal sufficiency, and at the hearing the only question which can be considered by the court is its truth. At the hearing the court cannot inquire into the materiality of the facts set up in the plea. If their truth is established, the bill must be dismissed. If the facts set up in the plea are not established, the complainant is entitled to a decree in accordance with this bill. These principles are well settled and uniformly recognized. Flagg v. Bonnel, 10 N. J. Eq. 82; Hunt v. West Jersey Traction Co., 62 N. J. Eq. 225, 49 Atl. 434. The result is that this court has no discretion whatever in this matter. The truth of the matters set up in the plea having been fully established at the hearing, the bill must be dismissed.
At the hearing the court called the attention of counsel of complainant to the cases above cited, and thereupon a motion was made for leave to withdraw the replication; but that motion has since been withdrawn and complainant's counsel has elected to stand upon the issues as framed.
A decree must be advised dismissing the bill.