Opinion
09-23-1898
James E. Howell, for the motion. R. V. Lindabury, opposed.
Bill by William T. Meredith against the New Jersey Zinc Company and others. Complainant moves for order compelling defendants to make more specific answer to certain interrogatories contained in the bill, or, failing in that, to strike their answer from the file. Denied.
The bill was filed on 3d of February, and an amendment filed thereto on the 5th of February, 1897. The subpoena was returnable March 1, 1897. The time for answering was extended, by an order of the chancellor, to April 10, and answer was filed on April 5, 1897. No replication has ever been filed to the answer. Application for an injunction, pursuant to the prayer of the bill, was denied on the 12th of February, 1897 (55 N. J. Eq. 211, 37 Atl. 539); appeal was taken therefrom by complainant forthwith, and the order denying the injunction was affirmed on the 28th of February, 1898 (41 Atl. 1116). No step having been taken by the complainant in the suit the defendants, on the 2d of May, 1898. obtained an order on the complainant to speed the cause on or before the 17th of May, 1898, or that the bill should be dismissed. On the 16th of May, 1898, the complainant, upon petition, obtained an order to show cause why he should not be permitted to file a replication and a supplemental bill. On June 24th leave was granted to complainant to file a supplemental bill and a replication to the answer already filed, and the order to speed the cause was discharged. No replication has been filed. The supplemental bill was filed on the 9th of July, 1898, and states untruly that a replication had been filed. On the same day the complainant served on the defendants exceptions to the answer, with notice based thereon of the motion for further answer, which came on for hearing on the 12th of September.
James E. Howell, for the motion.
R. V. Lindabury, opposed.
PITNEY, V. C. (after stating the facts). I think the complainant is out of time with his motion. It is made under rule 213, and takes the place of the exceptions and reference to a master, under the old practice. That rule provides that "any objections to any pleading [which, of course, includes an answer], or any part thereof, may be made and adjudicated upon, on motion, without the filing of a demurrer or exceptions"; and the last clause provides that such motion, "if made in reference to a bill, must be made within the time limited by law for demurring, unless the court, on application, shall grant further time." It is argued, on the part of the complainant, that the fact that the clause just cited mentions only a motion against a bill, and omits to mention an answer, has the effect of extending indefinitely the right to make the motion as to an answer, upon the application of the maxim, "Expressio unius, exclusio alterius." I am unable to adopt that view. The thirty-third section of the chancery act provides that the exceptions to the answer must be filed within 30 days after the expiration of the time limited or granted for filing the answer. The present motion is a substitution for the filing of exceptions and proceeding thereon before a master; and it could not have been the intention of Chancellor Runyon, in framing the rule in question, to extend indefinitely the time limited by the statute, by a mere implication. I must presume that, if he had intended so to do, he would have so stated in plain language. However, the reason for the special limitation put upon the time for moving to strike out a billis plain enough, when we consider the state of the statutory practice at the time the rule was put in its present shape, namely, April 17, 1886. At that time the defendant, had 40 days in which to plead or demur, and GO days in which to answer, while the complainant's right to except or file a replication was limited to 30 days. The object of the clause in question was simply to limit the defendant's right to move against the bill to 40 days, and prevent it from being extended by implication to GO days. There was no occasion to put any such limitation upon the time for moving against an answer or other pleading, as the time for filing exceptions was fixed. Since the adoption of the rule, the time to demur, plead, or answer has been reduced by statute to 30 days in each case. The complainant was in laches, and asked for time to file his replication, and to be relieved from the threatened order dismissing his bill for want of prosecution. That was granted as a matter of favor, and not of right, and, if he had desired to file exceptions, he should have made the motion at that time. Still, however, if the exceptions were meritorious, and the failure to obtain answers to the interrogatories in question was likely to work serious injury to the complainant, or embarrass him in the prosecution of his suit, the court might, upon consideration of the circumstances, permit a motion still to be based upon them. The merits of the exceptions were discussed, and I have considered them, with the result that I do not consider them of such a character as that the failure to specifically answer the interrogatories involved will result in any serious injury or embarrassment to the complainant in the prosecution of his suit. The information desired can be obtained, for the purposes of the hearing, by the ordinary process of the court, or, if necessary, by a special order. The bill is filed against eight corporations and four individuals, and the information asked for is, to a considerable extent, matter of opinion and judgment, and, for that reason, of doubtful value. So far as it is not a matter of opinion and judgment, it is mainly a matter of detail as to each individual corporation, and within the knowledge and reach only of the officers of each individual corporation, and not within the knowledge of all the defendants. The bill did not put interrogatories to each individual corporation, or make the officers of each individual corporation, as such, parties, and put specific questions to each, but the draftsman was content to put general interrogatories to all the defendants for information which all of them would not naturally have. The defendants united in an answer which was intended to be, and is, in the main, full and fair. No disposition is manifested in it to evade any of the charges of the bill, or the interrogatories based upon them. They seem, so far as not answered, to have been considered by the counsel of defendants as immaterial. I will advise that the motion be denied.