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U.S. Supreme Court

Poultny v. City of Lafayette, 44 U.S. 3 How. 81 81 (1845)

Poultny v. City of Lafayette

44 U.S. (3 How.) 81


Before a case can be dismissed under the 21st rule, regulating equity practice, there must exist, in the technical sense, a plea or demurrer on the part of the defendant, which the plaintiff shall not have replied to or set down for hearing before the second term of the court after filing the same.

The complainant, if he chooses, may go to the hearing, on bill and answer.

The heirs of Poultney filed a bill in chancery against the City of Lafayette and upwards of two hundred individuals.

It alleged that Poultney had purchased from the Widow Rousseau a tract of land about a mile and a half above the City of New Orleans in May, 1818, and that to secure the payment of part of the purchase money, he had mortgaged the same land to her for $80,000, payable in five annual installments of $16,000 each; that Poultney died in October, 1819, leaving minor children, and that the defendants were in possession of the property, which the complainants claimed a right to redeem.

The proceedings which took place in court after this are exceedingly complicated. Some of the defendants answered, using this expression, "the said answer to serve and be instead of a demurrer and pleas to the said bill of complaint." Objections were made to the jurisdiction of the court on account of the residence of the complainants, and a rule granted to try the fact of residence, which rule was afterwards set aside.

The bill was taken pro confesso as to many of the defendants, who were afterwards allowed to answer; numerous persons were vouched in warranty by the defendants, and afterwards the proceedings stricken out; demurrers were filed and overruled; the case was put upon the rule docket and then brought back again; three more defendants were brought in.

The answers, amongst other matters, averred that Poultney, at the time of his death, was insolvent, and that the property in question had been subjected to the operation of the laws in Louisiana and sold to its present possessors.

In 1842, the following proceedings took place.

On this first Monday of January, 1842, appeared Isaac T. Preston and C. M. Conrad, Esquires, for defendants, and filed in evidence with the clerk and master the following exhibits marked A, B, C, D, E, F, G, I, M, N, O, P, and on further motion of said counsel, this cause is set for trial for hearing on the merits, for Friday, 14 January, 1842.

And afterwards, to-wit, on 9 February, one thousand eight hundred and forty-two, the following entry was made of record, to-wit:

Page 44 U. S. 82

"Wednesday, February 9, 1842"

"The court met pursuant to adjournment. Present, the Honorable Theodore H. McCaleb, District Judge; the Honorable John McKinley, Presiding Judge, absent."

"Heirs of Poultney"

"v. No. 37"

"City of Lafayette"

"On motion of Isaac T. Preston, Esq., this cause was called on the docket and fixed for trial for Wednesday, 23 February, 1842."

And afterwards, to-wit, on 23 February, 1842, the following order of court was entered of record, to-wit:

"Wednesday, February 23, 1842"

"The court met, pursuant to adjournment. Present, the Honorable Theodore H. McCaleb, District Judge; the Honorable John McKinley, Presiding Judge, absent."

"Heirs of Poultney"

"v. No. 37"

"City of Lafayette"

"On 23 February, 1842, this case was called for trial, whereupon the complainants, by their counsel, objected, upon the ground that the cause was improperly put on the issue docket, and set down for trial; that no replication had been filed, and that, since the last term of the court, some of the defendants had died, and their heirs or representatives had not been made parties to the suit, and moved the court to remand this cause to the rule docket, that an issue might be formed. On the other hand, the defendants insisted that the case should proceed immediately to trial, or be dismissed under the rules of practice presented by the supreme court in equity cases. These motions were all fully argued together, and, after argument thereof, the court took time to consider."

"And afterwards, to-wit, on 24 February, one thousand eight hundred and forty-two, the following entry and decree were entered of record, to-wit: "

"Thursday, February 24, 1842"

"The court met, pursuant to adjournment. Present, Honorable Theodore H. McCaleb, district judge; Honorable John McKinley, presiding judge, absent."

"Heirs of Poultney"

"v. No. 37"

"City of Lafayette"

"On this day the court proceeded to deliver its opinion on the motions argued and submitted yesterday in this cause. When the court had announced it was about to deliver its opinion, the counsel for the complainants moved to be allowed to file the documents A and B, but the court refused to receive them, stating that it was

Page 44 U. S. 83

about to deliver an opinion on the cause, upon [which] the counsel for the complainants handed them to the clerk, the court considering that the complainants' application to file a bill of revivor or exceptions came too late."

"Decree of the court"

"The defendants having moved to dismiss the bill of complaint in this cause, under the 21st of the rules in equity cases, and it appearing to the court that the complainants had not set for trial the pleas filed in this case, nor filed replication to the answers, although more than two terms of the court had elapsed since the filing of the same, it is ordered and adjudged, and decreed, that the bill of complaint in this case be dismissed as to all the defendants, and the complainants pay the costs of suit."

From which decree, the complainants appealed to this Court.

Page 44 U. S. 86

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