Mercantile Trading Co. v. Rosenbaum Grain Corp.

The Chancellor.

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…