Opinion
10-20-1902
WILSON et al. v. AMERICAN PALACE CAR CO. OF NEW JERSEY et al.
E. A. Keasbey, for the motion. R. H. McCarter, opposed.
Bill by Wallace Wilson and others against the American Palace Car Company of New Jersey and others. Motion to strike out plea. Denied.
E. A. Keasbey, for the motion.
R. H. McCarter, opposed.
EMERY, V. C. Three of the defendants to the bill have filed a plea to the jurisdiction of the court, and the plea has been duly noticed and set down for argument at the next term, as required by Chancery Act 1902, § 20. Complainant now moves, under rule 213, to strike out the plea. The reasons relied on for striking out the plea are reasons which would, if well founded, entitle the complainant to an order at the hearing overruling the plea. The present application is therefore, for all practical purposes, a hearing on the validity of the plea, taking place on complainant's motion. Defendant claims that rule 213 does not authorize this motion on behalf of complainant. The rule reads: "Any objections to any pleading or any part thereof may be made and adjudicated upon motion, without the filing of a demurrer or exceptions. * * * The making of a motion under this rule shall be deemed a waiver of the right to demur or except." It has always been held that a motion to strike out a demurrer could not be made under this rule, as the motion under the rule was one made in lieu of demurrer or exception. Nolan v. Nolan (McGill, Ch.; unreported), referred to in Stanbery v. Baker, 55 N. J. Eq. 271, 37 Atl. 351. It is also held that a mutton to strike out an answer cannot be made under the rule, as such motion is substantially a demurrer to the answer, and no such demurrer is recognized. Doane & Jones Lumber Co. v. Essex Building & Land Co. (Stevens. V. C; 1899) 59 N. J. Eq. 142, 45 Atl. 537; Brill v. Mary A. Riddle Co. (N. J. Ch.; Grey, V. C; 1900) 47 Atl. 223, 224; Haberman v. Kaufer (Grey, V. C; 1900) 60 N. J. Eq. 271, 275, 47 Atl. 48.
The present motion is, in effect, a demurrer to the plea, or motion to overrule it, for the reason that the plea sets up no defense, and the hearing of the motion is, in effect, as I have said, an argument of the plea. The only difference is that on an argument of the plea the defendant opens and closes (1 Daniell, Ch. Prac. [6th Am. Ed.] *694), while on this motion the complainant has this right. The decisions I have referred to settle that the right to object to a pleading by motion, given by the rule, was a privilege or choice given to the party who otherwise could only demur or except, and was in lieu of the demurrer or exception, and that it was not intended to introduce for the benefit of the adverse party a new right of demurrer or exception, where no such previous right of demurrer or exception existed. The reason of these decisions governs this application, and I must hold that the complainant cannot, under rule 213, substitute a motion to strike out a plea for the hearing, on the allowance of the plea, already noticed and set down by defendant; and the motion is denied for that reason, without considering the validity of the plea.