Mercantile Trading v. Rosenbaum Grain Corp.

First, as to the motion to dismiss. No answer has yet been filed by the intervenors. They have filed a paper in the form of an answer. But by the terms of the order allowing its filing, it is to be taken as an affidavit only in considering the motion to dismiss, and as an answer in case the motion to dismiss is denied. The motion to dismiss therefore stands in the technical position of having been filed before answer.

In Holschumaker et al. v. Etchells et al., 9 Del. Ch. 33, 74 A. 644, a motion to dismiss after answer filed because of a want of equity appearing on the face of the bill was made…