93 F. 991 | U.S. Circuit Court for the District of Southern California | 1897
To the second amended bill of complaint, filed herein July 6, 1800, the defendants interposed a plea, which the complainant caused to lie set down for argument, and which was, by tbe respective parties, submitted upon the same briefs theretofore filed upon the hearing of the plea to the first amended bill. For the purpose of disposing of the plea so submitted, the court must assume, without proof on either side, the facts to be as set out in the amended bill where not controverted by the plea, and, where so controverted or inconsistent, to accept as true the contradictory and inconsistent allegations of the plea, together with such additional facts as are therein set out. Railroad Co. v. Groeck, 74 Fed. 585, and cases there cited. The case, as now presented, is substantially the same as when last under consideration. For the reasons given in the opinion then filed, and which is reported in 74 Fed. 585, an order will be entered sustaining the plea, with leave to the complainant, if it be so advised, to reply to the plea, and take issue in respect to the matters of fact therein alleged, within 20 days from 'his date.
