Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1893-11-30
The DEMURRER oYERRuLED.

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The Chancellor nd Items Decree, Friday
Morning, in the Preliminary skirinish
of the Great suit of the Mayor and
Council vs.. ). Edward AddicEs, ct all,
Gives First Blood TO the City.
Chancellor ad Item, Henry Ridgely
johnson, arrived from Dover Friday morn
ing and delivered his decree in the de-
murrer petition in the suit of the Mayor
and Council of Wilmington vs.. j. Edward
Addicks ct al.
The sitting was held in the Levy Court
chamber. The Chancellor WAS accom-
panied by William q. kerbin OF New
York.
Counsellor each side, Messrs. Spruance
and Bradford for the municipality and
Messrs. Harrington and Ward were pre-
sent. With the former counsel was Clty
Solicitor George A. Elliott. Among the
audience was President Edward Belts OF
the Wilmington Coat Gas Company. ~
The Chancellor requested his friend MT
kerbin to read the decree.
After reciting the different allegations OF
the bill, the Chancellor said:
1T is q well-establshed and undoubted
rule i'll equity proceedings that all persons
materially interested should be parties to
| the suit. either as compliments or de-
| PENDANTS in order that the court may
determine the rights of all the parties IN
1 lereSIDu Ill LIle SlDlGNb iuabbCl Va thN SNhh
and make complete decree-l DEL, Cnan.
| l67-l74; A, Del, Chan. 40.
This rule. however, is subject to certain
exceptions, not necessary here to mention.
| II is commended on the part of defendants
that this rule in regard to parties has been
violated by complainant by its own omis-
sion TO make a party defendant in this
cause certain alleged corporation called
the 0xy-Hydrogen Company of the state
OF Delaware, which said company the de-
PENDANTS claim is u legally existing corpo-
ration under the laws of this State, possess
ing a legal and valid organization, and for
the omission OH the part of complainant
to make the said company a party defend
ant. have demurTed to the bill,
1T is undoubtedly true that whenever a
want of proper parties appears in the face
of bill, the proper mode to take advant
age of this obstruction is by demurrer
Nit Chan. Pr. and Pl., p. 206.
docs il appear in the face of the nil
filed in this cause that the complainant
has failed or omitted TO make party. 6
defendant who ought to have been mad'
such?
while it is true that the complainant
in certain paragraphs of the bill anC
which are fully set forth above, refers to
certain alleged corporation called the 0xy
Hydrogen Company Of the State of Della
ware vet at the same time in no way rec
ognizes in said paragraphs, or in any othe
parts of the bill, the valid or legal exist
ence of such corporation as the Oxy
, Hydrogen Company, but on the contrar.
expressly charges that no legal or VAN
organization OF said company has eve
/ been effected
, lit nowhere appearing on the face o
] the bill that there is in exist ence
corporation possessing a valid or lega
organization by the name of the 0xy
Hydrogen Company of the State of Dels
ware; but corporation of that name, pos
sessing legal or valid organization bein
} expressly denied by the bill, do not Sc
3 how demurrer, for want of proper partie
: would properly lie.
, "By demurring to the bill, instead {
, adopting some other course of pleading
! the defendants have necessarily admitte
the truth of the matter and facts containe
D in the bill and il is alleged in the bill tn,
no legal nor valid organization of the sal
b Oxy-Hydrogeh Company OF the State {
: Delaware has ever been effected, the etfe
4 of the demurrer is to admit the truth
r such allegation.
IF it is the object and purpose of the
PENDANTS to controvert the allegations col
), tanned in the bill, they should do so
: some other mode Of pleading than by d
e murring.
n "As it is my opinion that this demurr,
: should be overruled for the reasons abo'
n given, have not thought it necessary
! deal with many of the questions discusst
N at the argument, especially rs most
y them will more appropriately arise at son
l. subsequent stage of tine cause. when h
y cause shall be at issue upon the prop
& pleadings.
o 'lhe demurrer must be overruled al
leave is granted to the defendants to plei
N or answer"