Sherman & Adams v. Windsor Manufacturing Co.

| Vt. | Jan 15, 1885

The opinion of the court was delivered by

Rowell, J.

The original bill in this case was brought to the September Term, 1880, of the Court of Chancery, to which a general demurrer was filed, which wag overruled pro forma at the September Term, 1883, and a decree passed for the orators according to the prayer of the bill, from which the defendant appealed.

At the January Term, 1884, of the Supreme Court, the defendant moved for leave to withdraw its demurrer and answer over, “ and raise the same questions by answer that could be raised by demurrer.” The cause was left “with the court,” for counsel to furnish briefs within a time certain, which not being done on the part of the defendant, said motion was overruled, the decree affirmed, and the cause remanded, with mandate.

At the March Term, 1884, of the Court of Chancery, a decree for the orators was entered pursuant to mandate, and the cause referred to a master to take the account; after which, but at the same term, the defendant moved that the decree be reversed and set aside, with leave to answer or plead, and showed by affidavit that it desired to set up the “Statute of Limitations as a defence.” The court found that the condition and circumstances then were the same as when said motion was made in the Supreme Court, no new facts having intervened, and denied the motion, on the ground that the mandate of the Supreme Court was obligatory upon it; and the defendant appealed.

It is obvious that the defendant is now asking for an opportunity to renew a question that was really raised by its demurrer, and might have been litigated under it had the defendant so elected, but which in effect was decided against it by the Supreme Court when it affirmed the decree of the Court of Chancery; for it is now well settled that lapse of time as a bar to a suit in equity may be availed of by demurrer when the objection appears on the face of the bill, as whatever objection.of that kind there is does in this case. Nor is this motion different in legal effect from the one made and denied in the Supreme Court.

In this state of the case, the mandate of the Supreme Court was obligatory on the Court of Chancery, and it was its duty to proceed to carry it into effect, as it did. R. L. s. 775. Nor does an appeal lie in such a case.

Appeal dismissed with costs.