Page:Federal Reporter, 1st Series, Volume 9.djvu/825

 810 FEDBBAL BEPOKTER. �demurrer was not certifled by counsel to be, in their opinions, well founded in point of law, nor was it supported by the affldavit of the defendants that it was not interposed for delay, �Baker e Hughes, for plaintiffs. �Waldo P. Johnson and H. A. Cunningham, for defendants. �Tbbat, D. J. a so-called demurrer was filed to the amended bill in thia case on April 1, 1880, not in conformity with rule 31, United States supreme court. The plaintif! might have moved, therefore, more than a year ago, for a decree pro confessa as to said demar- rants. That so-called demurrer is now submitted and oyerruled. An examination of the case satisfies the court that if said demurrer had conformed to the rules, it would not have been well taken. It was interposed, obviously, for mere delay, inasmuch as the only legal question involved had been decided, as set out in the bill, (65 Mo. 123,) adversely; which decision this court recognizes as conclusive on a question of state taxation. �To the amended bill, filed January 7, 1880, only one answer bas been filed, which is a general deniai, couohed in the form of an answer to a law action in the state court, and not sworn to. No replication thereto bas been filed ; so the case bas been suffered to float. More than a year ago the plaintiff could have had, by proper motion, a decree pro confesso; (1) Because the so-called demurrer was no demurrer in conformity with the rules of the supreme court; and, even if it were, it was not well taken, under the conclusive rulings of the supreme court of Missouri. (2) Several of the defend- ants had interposed no answer to the amended bills. (3) The only defendant purporting to answer, interposed merely a general deniai to the allegations of the bill, to which there should, possibly, have beon a pro forma replication. Such practice as a general deniai in form of a general issue is wholly unknown in equity ; and, whether allowable or not, the case might have been set down for hearing on the pleadings, with such evidence as had been presented within the time prescribed for taking the same. If such a deniai as to Holliday puts the party to a formai replication and proofs, the said defendant could, on motion, have the case dismissed as to him. But the man- ner in which these faulty proceedings have been pursued induces the court to permit, on terms, further action to be had, so far as the same may pertain to the merits, and no further. �The demurrer will be overruled, at the cost of the demurrants. Plaintiffs may take such further action as they may deem necessary. ��� �