E. I. Du Pont De Nemours & Co. v. Bentley

PER CURIAM. The petition alleged no connection of the petitioner with the vessels, except as shown by the charter party, .together with the fact that he used them to carry the powder. It must appear from the pleading itself that the petitioner is a charterer of the kind described in the statute, and here it is too plain for discussion that the charter party did not make him such. Smith v. Booth (D. C.) 110 F. 680. Whether other facts might bring him within the statute we need not inquire. We must go by the pleading. Hartford Accident & Indemnity Insurance Co. v. So. Pac. Ry. (February 21,1927) 47 S. Ct. 357, 71 L. Ed.-, does not even remotely touch the case. Nor does the ninth article of the petition add any relevant allegation. The only other question is as to whether a party cited by monition may except to the petition without filing a claim under the fifty-third rule. The rule makes this a condition precedent to filing an answer, but says nothing about exceptions. It would be an unreasonable condition to attach to the right to challenge the sufficiency of the pleading at the outset, and so to be rid of an injunction having no support in law. The more summary the procedure in such a case the better; 355 we think that rule 27 controls. So far as we can find, the point has never been bruited before, but it was passed sub silentio in The Titanic (D. C.) 209 F. 501, Oceanic Steam Nav. Co. v. Mellor, 233 U. S. 718, 34 S. Ct. 754, 58 L. Ed. 1171, L. R. A. 1916B, 637, In re Eastern Dredging Co. (D. C.) 138 F. 942, and The Erie Lighter No. 108 (D. C.) 250 F. 490, 492. We have no question of the propriety of the practice. Decree affirmed; mandate to issue forthwith.