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eBook details

• Title: Strauss v. United States Fidelity & Guaranty Co.
• Author : Fourth Circuit Circuit Court Of Appeals
• Release Date : January 08, 1933
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

On Motion for Rehearing. Since the argument in this case, our attention has been called to the recent decision of the Supreme Court in Schoenthal v. Irving Trust Company, 53 S. Ct. 50, 77 L. Ed. --, wherein it was held that an application to transfer a suit from the equity to the law side of a federal court was not too late if brought on for hearing before the commencement of the term. The suit was instituted by a trustee in bankruptcy to recover ascertained sums of money paid by way of preference by the bankrupt to the defendants, and no facts calling for equitable relief were disclosed. The answer denied the assertion in the bill that the plaintiff had no remedy in law, and there was no subsequent act or omission of the defendant inconsistent with this denial.So it was held that it was error on the part of the trial court to refuse to transfer the case from the equity to the law docket. The Supreme Court nevertheless reaffirmed the rule that the right of the defendant to a transfer of a suit in equity to the law side of the court, where there is an adequate remedy at law, may be waived, citing Reynes v. Dumont, 130 U.S. 354, 395, 9 S. Ct. 486, 497, 32 L. Ed. 934; American Mills Co. v. American Surety Co., 260 U.S. 360, 43 S. Ct. 149, 67 L. Ed. 306. In Reynes v. Dumont, the approved practice is thus described: ""The rule as stated in Daniell's Chancery Practice, (vol. 1, p. 555, 4th Amer. Ed.,) is that if the objection of want of jurisdiction in equity is not taken in proper time, namely, before the defendant enters into his defense at large, the court having the general jurisdiction will exercise it; and in a note on page 550 many cases are cited to establish that 'if a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has a plain and adequate remedy at law. This objection should be taken at the earliest opportunity. The above rule must be taken with the qualification that it is competent for the court to grant the relief sought, and that it has jurisdiction of the subject-matter.""

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