26 Ill. 165 | Ill. | 1861
The principal question in this case comes up on Moore’s supplemental answer of June 27, to the complainants’ bill. In that answer, he states that complainants never authorized him to insure their corn on storage—that it was not the custom of warehousemen at Havanna to insure property held as warehousemen or on storage; that he did not intend to insure property held by him as a warehouseman—that he gave no representation to the companies that would cover the corn of the complainants, and paid no premium therefor—that he never reported to complainants that he had insured their corn, because he had not done so, and consequently, they could not have adopted or affirmed any act of his with reference thereto—that complainants paid no part of the premium for the insurance ; and denies that their corn was covered by the policies.
To this answer a demurrer was filed and overruled, and the injunction dissolved and bill dismissed.
This practice of demurring to an answer we do not understand, and must reprobate it. It is in violation of all the rules of chancery practice and proceedings known to us.
An answer in chancery has, in general, a two-fold property. First, meeting the allegations of the bill, and second, a statement to the court of the nature of the defense on which the defendant means to rely; and in this respect the answer fulfills the duty of a plea, or a series of pleas, either denying facts upon which the plaintiff’s equity, as stated in the bill, arises, or by confessing such facts, and avoiding. them by the introduction oi some new matter, from which contrary inferences may be drawn-2 Daniel’s Oh. Prac. 814. He is not to state the conclusions in law which he intends to deduce, or has deduced, from the facts he has set out,—that would be contrary to all the principles of good pleading, but he should merely state the facts intended to be proved, and leave the inference of law to be drawn from them by the court, after argument. He may set up any number ,of defenses in his answer, as the consequence of the same state of facts, which his case will allow, or ingenious counsel suggest; but the defenses must be consistent with each other. Ib. 815, 816.
If, then, the complainant considers the defendant’s answer does not meet the demands of the law, or finds that the answer contains scandalous or impertinent matter, or that it does not sufficiently answer the allegations and charges in the bill, or is otherwise defective, he must file exceptions to it, in which he must state such parts of the bill as he conceives are objectionable. Or if the answer be not obnoxious to exceptions, it may be set down for hearing, and its sufficiency as a defense tested; this is equivalent to a demurrer at law. If it sets up new matter, which the complainant deems irrelevant, and as forming no sufficient grounds of defense, he can except to the answer, for impertinence. If the exceptions are allowed, either by the master on reference, or by the court, without a reference, and the answer adjudged insufficient, the defendant must file a further answer within such time as the court shall direct, and on failure to do so, the bill will be taken for confessed. If such further answer is deemed insufficient, the defendant must file a supplemental answer, and pay all costs attendant thereon; if that shall be adjudged insufficient, he may be proceeded against for a contempt of court. Scates’ Comp. 141, ch. 21, sec. 22; Kitchell v. Burgwin, 21 Ill. 43; Fulton Co. v. Miss. & Wabash R. R. Co., ib. 366.
If no exceptions are filed, a replication is usually put in, which makes an issue between the parties. If there be no exceptions, on replication, the cause is set down for hearing on the bill and answer, and exhibits, if any, and the answer is taken to be true, and no evidence shall be received, unless it be matter of record to which the answer refers. Scates’ Comp. 141, ch. 21, sec. 81.
In this case no exceptions were taken to the answers, nor were any replications filed, nor was the answer set down for hearing. The answers, therefore, setting forth facts constituting a defense, are to be taken as true, by force of the statute, and the injunction was properly dissolved, and the bill dismissed. The judgment must be affirmed.
Decree affirmed.
