| N.H. | Mar 13, 1875
Lead Opinion
By our practice, in proceedings of this kind, the demurrer is, I believe, equivalent to the motion to dismiss, and one ought not to follow the other. It appears, also, that the matters assigned as causes for demurrer may properly enough be considered at the general hearing. The demurrer, therefore, must be overruled, *229 unless the defendant shall in the circuit court obtain leave to withdraw it, and proceed to a hearing.
Concurrence Opinion
This is an application under Gen. Stats., ch. 163, sec. 15, for a modification and revision of the order, as to alimony and maintenance of the minor child, made in the divorce suit, Ellen C. R. Spofford v. James Spofford, or for the making of such new orders therein as may be necessary. It has been already decided that the death of the libellee does not cut off the right of the libellant to make the application against his executor. A demurrer in such a proceeding is a novelty, and I cannot see that any question of law is raised by it for the decision of the court. The application apprises the defendant what the libellant wants, and if it does not furnish all the information he ought to receive from that source, he may doubtless have the deficiency supplied by a timely motion in the circuit court.
SMITH, J. The petitioner in substance alleges that the allowance made to her and her minor child was insufficient, considering her condition and the tender years and general condition of the child, and prays for an additional allowance as alimony. It having been decided that the petition can be maintained, the principal if not the only question raised by the demurrer is, whether the allegations of the petition are sufficiently definite. No reason occurs to me why the petitionee is not sufficiently apprised of the nature and extent of the petitioner's claim to enable him to proceed safely to the hearing. If it should prove otherwise, he can, as suggested by my brother LADD, obtain relief by a timely motion in the circuit court.
Demurrer overruled.