
    H. H. SCOVILLE ET AL. v. A. RUIZ SOLER ET AL.
    San Juan,
    Equity,
    No. 1004.
    Effect of Appeal.
    Equity Oases — Prompt Trial.
    1. The equity rules require prompt trial of cases, continuances beyond the term being exceptions.
    
      Special Appearance — Jurisdiction.
    2. An answer repeating a previous objection to the jurisdiction does not waive the point. There are some reasons for answers to he filed after overruling a plea to the jurisdiction.
    Appeal on Jurisdiction — Trial on Merits.
    3. Where a case has been appealed generally, nothing can be tried in the court below; but if appealed merely upon the point of jurisdiction, the parties may try it upon the merits' below, subject only to • the possibility of everything being avoided by a reversal as to jurisdiction.
    Opinion filed June 22, 1918.
    
      Mr. Charles Hartzell for plaintiffs.
    
      Mr. H. G. Molina for defendants Hubbard.
    
      Mr. II. L. Kern, Attorney General, for defendant Soler.
   HamiltoN, Judge,

delivered tbe following opinion:

This bill was filed February 19, 1918) seeking to restrain the purchase of land and placing of a tuberculosis hospital on property adjoining plaintiffs, and claiming that this would work irreparable damage to them and to the neighborhood. Defendant Soler appeared specially on February 25 to set up that he represented the people of Porto Pico, who had not consented to be sued. This plea and motion were overruled, but in order to cover this point upon motion of defendant Hubbard notice issued on Hay 4 to the people of Porto Pico in the matter, but they have not appeared. On March 26 appeal was allowed on behalf of defendant Soler frbm the temporary injunction, and tbis bas been perfected, tbe necessary bond being given to cover costs; but it is not in tbe nature of a supersedeas, nor bas any bond been given upon tbat theory. On March 25 defendants Hubbard answered and on April 19 what is labelled “special appearance and special answer” was filed on behalf of defendant Soler, reiterating tbe former plea as to jurisdiction, and then going on to answer tbe allegations of tbe bill of complaint, admitting some and denying others. Now come tbe defendants Hubbard and aslc tbat tbe case be set for trial upon the merits, it being shown upon tbe argument tbat great damage is being done these defendants by having their property tied up without possibility of using, renting, or selling, pending tbe appeal.

1. Tbe equity rules contemplate tbat when cases are at issue they should be promptly set for trial. “The cause shall be deemed at issue upon tbe filing of tbe answer.” Rule 31. “After a cause shall be placed on tbe trial calendar it may be passed over to another day of tbe same term, by consent of counsel or order of tbe court, but shall not be continued beyond tbe term save in exceptional cases by order of tbe court upon good cause shown by affidavit and upon such terms as tbe court shall in its discretion impose.” Rule 57. [226 H. S. 17, appx. 57 L. ed. 1648, 33 Sup. Ct. Rep. XXXIV]. It would seem tbat any party bas tbe right to require tbe prompt trial of a ease, if it be not tbe duty of tbe court ^itself to order it, when it is at issue.

2. Tbe question arises whether tbis particular case is at issue when tbe answer filed is entitled as “special appearance and special answer.” Tbe practice as to special pleading cannot be said to be entirely settled, but tbe general principle is tbat it is allowable in order tbat a party may protect himself in regard to such special defenses as jurisdiction. There seems to be no reason why a subsequent answer is to be held as waiving the special plea. An answer to the merits after a plea to the jurisdiction does not waive the objection to the jurisdiction where the answer repeats the lack of jurisdiction. Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237. This is exactly the case at bar, and the fact that the answer is called a “special answer” does not change the case. A pleading is not any more than a picture determined by the name that is placed on it; the test is the contents, and the contents of this particular answer show that it is to the merits, merely as a preliminary repeating the plea to the jurisdiction. Central Grain & S. Exch. v. Board of Trade, 60 C. C. A. 299, 125 Eed. 463. There are good reasons to think that it is necessary to make answer after such a plea. Toledo R. & Light Co. v. Hill, 244 U. S. 49, 51, 61 L. ed. 982, 986, 37 Sup. Ct. Rep. 591. This is no new doctrine. The old forms of answers always began by saving and reserving the errors, uncertainties, and other imperfections in the bill of complaint. Cxirtis, Eq. Precedents, 184.

3. It would be anomalous and improper for this court to proceed to try a case which had been removed by appeal to the circuit court of appeals. That, however, is not true of the case at bar. The matter of jurisdiction has been appealed and will no doubt be passed upon one way or the.other in due time; but the appeal was not framed as a supersedeas and so cannot be held to act as preventing this court from proceeding otherwise. The only effect of the appeal is that, if the contention of the appellant is sustained, the result would be that this court is without jurisdiction, and whatever may be determined here is subject to that contingency. If, however, any party wishes to have tbe case tried under those circumstances there seems to be no technical reason why it should not be done.

It would seem, therefore, that the answer filed is one to the merits and is to be treated as such. It follows that the case is to be held at issue and ready for trial upon the merits. The provisional setting heretofore made is confirmed.

It is so ordered.  