Geroux's Admr. v. Graves
Supreme Court of Vermont
This was an action by the administrator of Moses Geroux for the neglect of the defendant resulting in the death of his intestate. The case was heard at the September Term, 1889, Mun-son, J,, presiding, upon demurrer to the original declaration, and a motion to dismiss the new declaration. The court sustained the demurrer and granted the motion. The plaintiff •excepts.
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This was an action by the administrator of Moses Geroux for the neglect of the defendant resulting in the death of his intestate. The case was heard at the September Term, 1889, Mun-son, J,, presiding, upon demurrer to the original declaration, and a motion to dismiss the new declaration. The court sustained the demurrer and granted the motion. The plaintiff •excepts. The defendant moved to dismiss for the reason that the new declaration introduced new parties and a new cause of action. In hearing this motion the court confined itself exclusively to the .record, and declined to receive…
1Opinion of the Court
The opinion of the court was delivered by
Rowell, J.
In our practice, motions to dismiss new counts are not like motions to dismiss the action, which are confined to ■defects apparent on the face of the record or papers on inspection ; but they are another way of doing what in England would be done by a rule nisi. There the defendant, on motion, obtains a rule that the new count to which he objects be stricken out unless (nisi) the plaintiff shows cause to the contrary; and this rule is afterwards, on further motion, made absolute or discharged, as the case may be. 1 Tidd. Pr. [*478] ; Brown v.…
2Cases cited4 opinions
- Boyd v. BartlettSupreme Court of Vermont · 1863
- Hill v. SmithSupreme Court of Vermont · 1861
- Westcott v. Central Vermont R. R.Supreme Court of Vermont · 1889
- Lycoming Fire Insurance v. BillingsSupreme Court of Vermont · 1889
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- Neubeck v. LynchCourt of Appeals for the D.C. Circuit · 1911