Opinion
Opinion Filed December 4, 1968
Mandamus.
1. Where argument in support of demurrer filed by defendants was based on facts and matters not pleaded and plaintiffs had not joined essential party, demurrer would be overruled with leave to defendants to file additional pleadings and to plaintiffs to file additional or responsive pleadings including citing in of any necessary additional parties.
Petition for writ of mandamus. Petitionee demurred. Shangraw, J., presiding. Demurrer overruled.
Loveland Hackel for the Petitioner.
Milton Pinsker, Esq., for the Petitionees.
October Term, 1968
Present: Shangraw, Barney, Smith, Keyser, JJ., and Larrow, Supr. J.
This is a petition for mandamus. The argument in support of the demurrer filed by the defendants was based on facts and matters not pleaded. It also developed at the hearing before this Court that the plaintiffs had not joined a party concededly essential. In view of these shortcomings, the matter ought not to be disposed of in its present situation.
The demurrer is overruled, with leave to the defendants to file additional pleadings within fifteen days of this entry, if they be so advised. Leave is also afforded the plaintiffs to file such additional or responsive pleadings, including the citing in of any necessary additional parties, as they may be advised, not later than thirty days after this entry.