Copyright
Walter Malins Rose.

A code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a online

. (page 70 of 114)
Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 70 of 114)
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claims the same benefit of the objection as if he had demurred to the
same or to the discovery sought thereby.

And this defendant also humbly submits that the plaintiff's are not en-
titled in this suit to the relief sought in and by the third, etc., paragraphs
of the prayer of the supplemental bill, or for the purposes thereof to
have any accounts, directions, or inquiries taken, given, or made; and
he claims the same benefit of the objection as if he had demurred to the
relief so sought.

2747



p. 543. EQUITY FOKMS. [Code Fed.

F. 543.
Statement in Answer to Prevent Plaintiff from Calling for the Production

of Documents.
This defendant has now in his possession or power the several letters,
papers, and writings relating to the matters in the bill mentioned, or some
of them, and he has in the schedule hereto, which he prays may be taken
as part of this his answer, set forth a list, or schedule of all the said let-
ters, papers, and writings; but this defendant denies that thereby, or
otherwise, if the same were produced, the truth of the matters in the said
bill mentioned, or any of them, would appear, further or otherwise, than
as the same is hereinbefore admitted.

F. 544.
Answer and Disclaimer.
[Title and commencement.]

This defendant has never received any part of the estate or effects of the
testator or in anywise intermeddled therein, and he has never assented to,
or in any manner accepted the said devise made to him by the said will
jointly with the said , and he has never in any manner con-
sented to become a trustee of the said will, or in any manner acted or in-
terfered in the trusts thereof; and, in fact, this defendant has at all
times refused to accept, and does now refuse to accept the office of trustee
of the said will; and defendant has always disclaimed, and does hereby
Qisclaim and renounce, the said devise made to him by the said will, and all
and singular the estates and property which could or might pass under or
by virtue thereof, and all estate and interest therein, and also the trusts
of the said will, and the office or duty of executing the same.

F. 545.
General Form of Disclaimer.

The answer and disclaimer of XY, the above-named defendant [or, one
of the above-named defendants], to the bill of complaint of the above-
named plaintiff.

Or, the joint and several answer and disclaimer of VW and XY, the
[or, two of the] above-named defendants to the bill of complaint of the
above-named plaintiff. In answer to the said bill, I, VW [or, we, VW and
XY], say as follov.-s:

"I [or, we], have not, and do not claim, and never had or claimed to have,
any right or interest in any of the matters in question in this suit, and
I [or, we] disclaim all right, title, and interest, legal and equitable, in any
of the said matters; and I [or, we] say that if I [or, we] had been ap-
plied to by the plaintiff before the filing of his bill, I [or, we] should have
disclaimed all such right, title, and interest; and I [or, we] submit th?.t
the bill ought to be dismissed as against me [or, us] with costs.



(Name of Counsel)."
[The disclaimer should be signed by counsel and by the defendant.]

2748



Procedure] EQUITY FOUMS. F. 546.

F. 540.
Answer to Suit to Enjoin Working of Mines.
[Title of Court and L'ausc.J

Now comes the Last Chance Mining Company, defendant in the alr>ve
entitled action, and answering the complaint of the plaintilf herein, says:

First.— That as to whether or not phiintiff is now, or at all times since
the year 1880 has been, a corporation duly organized and existing under
the laws of the State of Oregon, having its principal ollice and place oi'
business at the city of Portland, in the State of Oregon, this defendant
has not sufficient information on which to base a belief, and therefore
denies the same.

Second. — xhat as to whether or not the plaintiff is now or ever was at
any time the owner of, or entitled to tiie possession of, that certain lode
mining claim known or called the Tyler Lode, situated in the Yrcka Min-
ing District, county of Shoshone, State of Idaho, described by metes and
bounds as in the fourth paragraph in the plaintiff's complaint set forth,
this deienaant has not sufficient information upon wliich to base a belief,
and therefore denies the same.

Third, fourth, and fifth. — Here follow denials as to the position of the
lodes as alleged in the bill.

Sixth. — Defendant denies that on or about the first day of July, 1890,
or at any other time, that it wrongfully or unlawfully entered into and
upon any part or portion of any vein (etc., as described and alleged in
bill), or that it ousted or ejected the plaintiff therefrom, or from any
vein or lode, or that it wrongfully took or carried away therefrom or con-
verted to its own use, large and valuable quantities, or any quantity, of
ore in said vein contained, the property of plaintiff, of the value of $200,-
000, or of any value, or that it has at all times since, or at any time be-
fore or since, wrongfully withheld, or that it does now wrongfully with-
hold, from the plaintiff the possession of said portion of said vein, lode,
or ledge so lying to the south of the south side line of the said pretended
Tyler Mining Claim, between the plane drawn through the end lines of
said claim as aforesaid, or that it wrongfully withholds from the plaintiff
the possession of any vein, lode, ledge, ore bodies, or other property of
any kind or character, to damage plaintiff in the sum of $200,000, or
to the damage to plaintiff in any sum whatever.

Seventh. — Denies that the value of any vein, or any portion of any vein,
lode, or ledge, wrongfully withheld from the plaintiff' by the defendant,
exceeds the sum of $2,000, or any other sum.

Eighth. — Defendant alleges the truth to be that all the ores, minerals,
and rock that have been extracted and carried away from the point in con-
troversy by it, are and were a part of a ledge having its top or apex with-
in the surface lines of the Last Chance Lode Mining Claim, the property
of this defendant, which said ledge and ores belonged to, and were and
are, the property of this defendant by virtue of the same being a part
of the Last Chance Lode Mining Claim, located on the seventeenth day
of September, 1885, by the grantors and predecessors in interest of this

2711



p. 547. EQUITY FORMS. [Code Fed

defendant, which said Last Chance Lode Mining Claim is now the prop-
erty of this defendant, together with all ores, ledges, and veins having
their outcrop and apex within the surface lines of the said Last Chance
Lode Mining Claim.

Ninth. — Defendant denies that any of the ores, metals, minerals, rock,
or earth which it has mined or removed from within the surface side
lines of the said Last Chance Lode Mining Claim, extended downward
vertically, were a part of or belonged to any vein, lode, or ledge having
its top or apex outside of the surface lines of the Last Chance Mining
Claim, the property of this defendant.

Tenth. — Denies that it has ever removed, extracted, mined, or carried
away any ores( metals, minerals, rock, or earth from any ledge other
than a ledge having its top or apex within the surface lines of the said
Last Chance Lode Mining Claim.

Wherefore defendant prays that this action may be dismissed, and that
defendant may go hence without day, and that it have and recover its-
costs and disbursements herein.

W. B. HEYBURN,

(Verification.) Attorney for Defendant.

I hereby certify that the foregoing answer is, in my opinion, well founded
in point of law.

Dated , 18 .



Counsel for Defendant.
F. 547.
Answer and Cross-Complaint.

[Title of Cmrt and Cause.]

The answer of the above-named defendant, the Last Chance Mining
Company, to tbo bill of complaint of the above-named plaintiff.

In answer to said bill, the Last Chance Mining Company says as fol-
lows:

First. That as to whether or not the Tyler Mining Company, plaintiff
in said suit, is a corporation organized and existing under the laws of
the State of Oregon, or as to whether or not said Tyler Mining Company
is a corporation organized and existing under any law, this defendant
has not sufficient information on which to base a belief, and therefore
denies the same, ect.

(Other denials follow.)

Twenty-seventh. Defendant denies that it combined and confederated
with other corporations named, or with any person, or persons, or cor-
porations, or that while combining and confederating with the other cor-
porations named, and with the said other defendants, and by means of
tunnels which enter the earth some 100 feet distant from the south-
easterly end line of the Tyler ground or elsewhere, and which were not
made with any apparent design to enter upon or driven into the direction
of the alleged lode which crosses in the Tyler ground, and which have
not been so constructed as to secretly, underground, reach and strike the

2750



rocedure] EQUITY FOKMS. F. 547.

vein belonging to the complainant, it reached and struck the vein be-
longing to the complainant ; and defendant alleges the fact to be that the
tunnel referred to in complainant's complaint maintains an even cour.se and
direction for a distance of about 800 feet, until it strikes the ore bodies in
its ground, a part of a ledge having its top and apex within the Last
Chance Mining Claim.

(Other denials follow.)

Forty-eighth. Denies that the defendant is doing the acts complained
of with a full knowledge of the truth as in the complaint stated; but
alleges the truth to be that the statements in the said complaint in
reference to the acts of defendant are untrue.

Forty-ninth. Denies that unless restrained and enjoined by the process
of this Court, that the alleged damage will be committed, or that any
act of defendant will be a damage to the complainant, or that any act of
defendant will produce irreparable damage to the complainant.

Fiftieth. Wherefore, the defendant prays that plaintiff's bill may be
dismissed, and that all orders heretofore made in the premises be vacated,
and that the defendant have and recover its costs.

For cross-complaint and for affirmative relief, your orator shows to the
Honorable Judges of the Circuit Court of the United States, in and for
the district of Idaho:

First. That it is a corporation organized and existing under the law^5
of the State of Washington; tliat its name is the Last Chance Mining
Company; that it comes into court at the suit of the Tyler Mining Com-
pany against Charles Sweeney, Frank R. Moore, Kennedy J. Hanley, J.
Quackenbush, Alexander Ross, John Pressly, Frank Hyatt, The Last Chance
Mining Company, a corporation. The Idaho Mining Company, a corpora-
tion, and Republican Mining Company, a corporation.

Second. That the said Sweeney, Moore, Hanley, Quackenbush, Ross,
Pressly, and Hyatt have disclaimed any interest in the subject matter
of the litigation, and have filed their disclaimer in this court.

Third. That the Idaho Mining Company, a corporation, organized under
the laws of the state of Washington, is the owner of the "Last Chance"
Fraction Lode jNIining Claim, and the "Skookum" Fraction Lode Mining^
Claim, and that said Last Chance Fraction and Skookum Fraction Lode
Mining Claims lie to the westward of the claim of your orator, and in no
way conflicting with it, and your orator claims no interest therein, and
has no connection with or control over the said Idaho Mining Company
or the property claimed by it.

Fourth. That the Republican Mining Company is a corporation organized
under the laws of the State of Washington, and owns the Republican
Fraction Lode Mining Claim, which lies to the northward of the Last
Chance Lode Mining Claim, and your orator has no interest in or con-
trol over either the said Republican Mining Company or the property
owned by it, and is not responsible for tlie acts and things done by said
Republican ]\Iiniiig Company.

Fifth. That your orator, the Last Ch.^nce Mining Company, is now, ana

2751



F. 548. EQUITY FORMS. [Code Fed.

ever since, etc. (Here follow allegations of ownership and of aaverav
daims by the plaintiff in original auit.)

Twenty-sixth. Wherefore, your orator, to the end that it may obtain
relief to which it is justly entitled in the premises, prays the court to
grant to it your writ of subpoena directed to the said Tyler Mining
Company, requiring and commanding it to appear herein and answer, not
under oath, an answer under oath being hereby expressly waived, to the
several allegations in this cross-bill contained.

Twenty-seventh. That it be required to set forth any and every adverse
interest, claim, or demand in or to said lode or premises called the Last
Chance Lode Mining Claim, to the end that said adverse interest, claim,
or demand may be justly adjudicated and declared null and void as
against the cross-complainant; and that the title and ownership of your
orator in and to said Last Chance Lode Mining Claim be established
and confirmed as against any and all claims of the said Tyler Mining
Company, and all cloud thereon forever removed.

Twenty-eighth. That your Honors grant unto your orator your writ of
injunction, commanding said Tyler Mining Company, its servants, em-
ployees, and workmen, and all persons claiming to act under its authori
ty, direction, or control, to absolutely desist and refrain from entering
ii;io or upon any portion of the said Last Chance Ix)de Mining Claim, and
from working on or in the said premises, or inside the surface lines there-
of extended downward vertically, until such time as your Honors shall
appoint and direct an order herein; and that said Tyler Mining Company,
and ail persons claiming to act by its authority or for or on its behalf,
be restrained from the commission of any acts or things hereby sought to
be enjoined, and that upon such hearing the writ herein prayed for,
pending this suit, be made and confirmed until the final determination of
this suit, and that thereupon said injunction may be made perpetual, and
that upon a hearing of this suit and adjudication the cross-complainant be
quieted and confirmed, and his title to the said Last Chance Lode Min-
ing Claim throughout its entire extent, and to any and all lodes having
their top or apex within the surface lines of said Last Chance Lode Mining
Claim; and that the Tyler Mining Company has taken the ores and miner-
al? from the cross-complainant as alleged by its cross-bill in fraud of its
rights, and for such other and further relief, preliminary and final, as to
the court may seem meet and proper, and which equity may require,
and for costs of suit.

THE LAST CHANCE MINING COMPANY,
By Frank R. Moore, President,

Defendant and Cross-Complainant.
W. B. HEYBURN,
Solicitor for Defendant and Cross-Complainant.

(Verification, etc.)

F. 548.
Supplemental Answer.
[Title of Court and Cause.]

Now comes the above-named defendant, the Last Chance Mining CJom-

2752



I



Procedure] EQUITY FORMS. F. 550.

pan.v, and by leave of court first had and obtained, files this, its sup-
plemental answer, to the complaint of the plaintiff filed herein, and
alleji-es:

First. That since the commencement of the above-entitled action and
the filing of the complaint therein, and since the filing of the answer of
this defendant therein, this defendant has purchased from the government
of the United States that certain quartz lode raining claim called the La.st
Chance, situated in Yreka Mining District, Shoshone county, Idaho, more
parlicularly described as follows, to wit: ....

And has paid the government of the United States for said mining
claim at the rate of five dollars ($5.00) per acre; and has obtained the
receiver's receipt of the United States land office at Coeur d'Alene, Idaho,
for the land district in which said mining claim is situated, for the sum
of money so paid for said mining claim.

Second. That by virtue of the said purchase and payment, and the
holding of the said receipt of the receiver for the purchase price of the
said mining claim, the defendant, the Last Chance Mining Company, is
now the owner of the said Last Chance Mining Claim, so described as
aforesaid in fee.

W. B. HEYBURN,
Attorney for Defendant.

(Verification, etc.)

P. 549.
Exceptions for Scandal.
To Bill (or Answer) for Scandal.
[Title of Court and Cause.]

Exceptions for scandal taken by the above-named defendant X Y to
the bill of complaint of the above-named complainant, filed in this cause
on the day of .

First exception. For that the whole of the paragraph in the said bill
(identify the paragraph) is scandalous.

Second exception. For that the passage commencing with the word

" " in the line and ending with the words "- " in the

line of the para,graph of said bill (identify the paragraph)

rs scandalous.

In all which particulars this exceptant excepts to said bill as scandalous
and humbly insists that the said scandalous matter ought to be expunged
therefrom.



(Counsel's name.)
Note. — By appropriate changes the above form can be adapted to ex-
ception to answer.

F. 550.
Exceptions to Answer.
[Title of Court and Cause.]

Exceptions taken by the said complainant to the separate answer of
the defendant, the Last Chance Mining Company, to complainant's bill of
complaint.

Fed. Proc— 173. 2753



F. 550. EQUITY FORMS. [Code Fed.

1st. For that said defendant, the Last Chance Mining Company, has not
to the liest of its knowledge, information, recollection, and belief an-
swered the allegations of comj^lainant that it is a corporation duly organ-
ized and existing as stated in the complaint.

2d. For that the pretended denials of the matters alleged in the bill
of complaint, and found in paragraphs numbered 4, 5, 6, 7, 8, 9, and 10,
are not made upon the best knowledge, remembrance, information, and be-
lief of said defendants, and for that it doth appear from othr parts
of said answer that said pretended denials contained in said paragraphs
are evasive, sham, and insufficient.

3d. For that the allegations of complainant's bill in paragraph numbered
II, in the answer of the said defendant to the said complainant's bill, is not
full or explicit, and is evasive, specious, and insufRcient.

4th. For that the matters in the complainant's bill alleged, to which
paragraph numbered 12 of defendant's answer is interposed, is not made
upon its best information remembrance, belief, and knowledge, but is sham,
disingenuous, evasive, and untrue as appears from other parts of said an-
swer, and is insufficient.

5th. That paragraphs 13 and 14 of defendant's answer filed herein, to
the matters to which the same are addressed are insufficient, sham, and
evasive, and are not made upon its best knowledge, information, re-
membrance, and belief.

That the denials contained and purported to be made by said defendant
in paragraphs 13 and 14 of said answer to the complainant's bill of com-
plaint are sham, irrelevant, insufficient, and appear from other portions
of said answer to be untrue.

6th. That paragraph 15, or so much thereof as is contained in the fol-
lowing denial, to wit: "Defendant denies, etc," is sham, insufficient, and
not made upon complainant's knowledge, information, recollection or be-
lief and is untrue as shown by other portions of said answer and is
therefore insufficient.

11th. For that the allegation contained in paragraph numbered 20 of
said answer is impertinent, irrelevant, and immaterial, and contains no
defense to the complainant's allegations on the same matter, and is in-
sufficient.

13th. For that the defendant's denial contained in paragraph 24 of this
answer to complainant's bill of complaint is impertinent, a mere conclu-
sion of law, is not made upon defendant's best knowledge, information, and
belief, and is in-elevant and insufficient.

16th. That the paragraphs numbered 29 and 30 of the defendant's answer
to plaintiff's bill of complaint are sham, untrue, insufficient, not being upon
the best knowledge, information, and belief of defendant, but being eva-
sions of the charges made in said bill upon the subject matter, and are
therefore insufficient.

17th. That defendant's denials 31 and 32 are neither the substance of
the allegations of the complaint, nor are thej^ direct, positive, nor upon
its best knowledge, information, or belief. They do not show how much
ore or other minerals it has taken from the ground in dispute nor how

2754



rioccdure] EQUITY FORMS. i, ^-p

. 18th. That denial 33 is insufficient, because it is evasive of the issue

allegations and is inconsistent with the allegations of the answer that
the conip lainants are not owners thereof, and is therefore insufficient

19th Ihat paragraphs 3.5, 36, 37, and 38 are each and all of them in-
consistent with other admissions and allegations of the said answer and
are but mere evasions of the allegations of the bill of complaint, and do
not deny them in substance according to the best knowledge, nforma-
tion and belie of defendant, and are therefore insufficient as a defease.

Wherefore, the complainant comes, and in all particulars aforesaid ex-
cepts to the answer of the said defendant, on the grounds alleged, that
the same IS evasiv., imperfect, insufficient, irrelevant, and impertinent-
and humb y prays that the said defendant may be compelled to put L
full complete, a.id sufficient answer thereto, and have such other relief
in the premises as to the court may seem proper.

ALBERT ALLEN,

T/^xjxT T> ,, T^nr.. Solicltor for Complainant,

JOHN R. McBRIDE, Of Counseh



! 7 .1.-5



CHAPTER 22.

REPLICATION, MOTIONS AND NOTICES EST EQUITY.

F. 560. Replication to answer.

F. 561. General form of notice of motion.

F. 562. Motions to amend bill.

F. 563. Motion by infant, on coming of age, to disrciss bill with costa.

before decree.

F. 564. Motion by plaintiff to dismiss his bill with costs.

F. 565. Motion to withdraw a plea or demurrer.

F. 566. Motion to amend answer.

F. 567. Motion for leave to amend an answer by consent.

F. 568. — for leave to file supplemental answer, by consent.

F. 569. Notice of hearing of exceptions to answer.

F. 570. Motion to enter a decree nunc pro tunc.

F. 571. Special motion to rectify a decree or order.

F. 572. Motion for rehearing.

F. 573. Notice of motion for judgment.

F. 574. Motion for judgment.

F. 560.

Replication to Answer.

[Title of Court and Cause.]

This replicant, A B, saving and reserving to himself all and all manner
of advantages of exception which may be had and taken to the manifold
errors, uncertainties and insufficiencies of the answer of the defendant,
X Y, for replication thereunto saith that he doth and will aver, maintain,
and prove his said bill to be true, certain, and sufficient in the law to be
answered unto by the said defendant, and that the answer of the said
defendant is very uncertain, evasive, and insufficient in law to be replied
imto by this replicant ; without that, that any other matter or thing
in the said answer contained, material or effectual in the law to be replied
unto, and not herein and hereby well and sufficiently replied unto, con-
fessed, or avoided, traversed, or denied, is true; all which matters and
things this replicant is ready to aver, maintain, and prove as this honor-
able Court shall direct and humbly prays as in and by his said bill he
hath already prayed.



Solicitors for complainant.



Procedure] EQUITY FORMS. P. 504.

F. 501.
General Form of Notice of Motion,
[Title of Ck)urt and Cause.]
Take notice that this honorable Court will be moved, for and on behalf

of the plaintiff, on the day of , instant [or next], that

(state terms of motion.)

Dated this day of .

A B,
Plaintiff's Solicitor.
To Mr. C D,

Defendant's Solicitor.

F. 502.
Motions to Amend BilL
[Title of Court and Cause.]
Commencement :

Comes now the plaintiff above named, and moves the Court that he may
be at liberty to amend his said bill, as shall be advised, without costs,
amending the defendant's etc., copies.

Or that he may have leave to amend his bill by adding the said E F, a
defendant thereto, with apt words to charge him.

Or that he may have leave to file the amended bill hereto attached.

F. 503.
Motion by Infant, on Coming of Age, to Dismiss Bill with Costs, Before

Decree.
[Title and address.]

Comes now the plaintiff, above named, late an infant, but now of full
age, and shows to this honorable Court:

1. That this plaintiff when an infant, by C D, his next friend, filed his
bill in this cause against the defendants, to which they appeared; but no



Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 70 of 114)