Star Ball Retainer Co. v. Klahn

CROSS, District Judge. The defendant has filed a general demurrer to the bill of complaint in this cause. The demurrer, however, partakes more of the nature of an answer than of a demurrer. It is what is sometimes called a “speaking demurrer.” A demurrer in equity, as at law, admits all the facts which are properly pleaded. The purpose of a demurrer is not to set out facts, but to test the law arising upon the facts stated in the bill. Questions which cannot be-thus raised must be set out affirmatively either by plea or answer. These propositions are so well settled that a citation of authorities seems wholly unnecessary. See, however, Stewart v. Masterson, 131 U. S. 151, 9 Sup. Ct. 682, 33 L. Ed. 114. Disregarding, therefore, matters of fact set up in the demurrer in denial of the averments in the bill, and accepting, as I must at this time, the statements of the bill as true, I feel constrained to overrule the demurrer. But, were it otherwise, I still think the questions raised could not fairly and justly be settled upon demurrer. The questions intended to be raised by the demurrer may and will depend to some extent upon the construction put upon the claims of the complainant’s patent; whether these are to be construed narrowly or broadly will depend upon the prior art, which is not now disclosed; furthermore, expert testimony may be required to aid in solving the question. Thompson-Houston Electric Co. v. Western Electric Co., 72 Fed. 530, 19 C. C. A. 1; Drainage Construction Co. v. Englewood Sewer Co. (C. C.) 67 Fed. 141; Roe v. Blodgett (C. C.) 87 Fed. 868; Indurated Fibre Industries Co. v. Grace (C. C.) 52 Fed. 124, 129. It would be extremely hazardous, if not impossible, to adjudicate the rights of the respective parties upon the demurrer. ' I am convinced that the case will have to go to final hearing. The demurrer is overruled, with costs, with leave to the defendant to answer within 30 days.