United States Courts of Appeals Reports; Cases Adjudged in the United States Circuit Court of Appeals Volume 13
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1895 edition. Excerpt: ...urged by plaintiff, and as of no greater importance than objections advanced orally, we find no error in the ruling of the judge in refusing to strike out the supplemental petition. His ruling on that point and on all the other objections of defendants and warrantor, hereinabove enumerated, is fully sustained by the decisions in the cases of Hickman v. Dawson, 33 An. 438; Mcjllaster v. Seward, 11 An. 546; illarillot v. Wesley, 11 An. 467, in which the right of plaintiff, in a petitory action, to meet the title opposed to him, even a tax sale, by all me-'M5 of attack as though specially pleaded, has been recognized I18 a correct rule of practice." _ In Maillot v. lVesle_1/, supra, which was an action of re'end1cation, the court said: " As our law does not permit eithera replication or rejoinder, all matters of defence set up in the answer must therefore be considered as open to every 0ble' tion of law and fact, as if such objections had been specially pleaded; thus the plaintiff may resort to the exceptivllfi Of nonage, coverture, fraud, violence, and the like, without P163-d' ing them, because he is not permitted to reply." _ In Hickman v. Dawson, supra, which was a petitory 86111011 in which the plaintiffs alleged title and the defendants 5611"? a tax title, the court said: "In such a case, all matters Oi defence set up in the answer must be considered as open W every objection of law and fact, as if such objections had been Specifllly pleaded. The title which defendant sets up in such an action is presumed to be traversed or resisted in all its vital elements, and is thus open to every attack which might be leveled at it in a direct action in nullity." The first and 'third assignments of...
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- 13 Sep 2013
- United States
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