Dunn v. Prudential Ins. Co. of America

NORDBYE, District Judge (after stating the facts as above).

Defendant takes the position that, in that it has interposed the defense of an equitable plea, the proper practice is to order the equity cause transferred to the equity side of the court. It maintains that this practice is implied from the language to be found in 28 USCA § 398, and recognized in Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 43 S. Ct. 118, 67 L. Ed. 232, which gives to the defendant the same rights as if it had filed a bill embodying the relief prayed for .in said answer. Defendant further advances the…