Atlantic Refining Co. v. Port Lobos Petroleum Corp.

MORRIS, District Judge. Each of the original parties to this cause has filed a motion to strike out “the answer and counterclaim” of Marcel Denis, intervening party. Equity rule 33 (198 Fed. xxvii, 115 C. C. A. xxvii), upon which the motions depend for their support, provides in part: “But if an answer set up an affirmative defense, set-off or counterclaim, the plaintiff may, upon five days’ notice, or such further time as the court may allow test the sufficiency of the same by motion to strike out.” The answer under attack contains, however, not only affirmative defenses, but also express and direct denials of crucial allegations of the bill. As such portions of the answer do not fall within rule 33 (Churchward International S. Co. v. Bethlehem S. Co. [D. C.] 233 Fed. 322; In re Fosgate [D. C.] 268 Fed. 985), and the motion is directed to the answer as a whole, and not to specific portions, it must be denied. But, apart from this, I think the questions raised by the answer of the intervening party are of such character that they should not be determined until all the facts are presented by the evidence. Churchward International S. Co. v. Bethlehem S. Co., supra; Rankin v. Miller (C. C.) 130 Fed. 229; Foster-Eddy v. Baker (C. C.) 192 Fed. 624, 626; Kansas v. Colorado, 185 U. S. 125, 147, 22 Sup. Ct. 552, 46 L. Ed. 838; Virginia v. West Virginia, 206 U. S. 290, 322, 27 Sup. Ct. 732, 51 L. Ed. 1068. The motion to strike will be denied without prejudice to any question.