
    HUNTINGTON v. LAIDLEY et al.
    (Circuit Court, D. West Virginia.
    March 31, 1897.)
    1. Equity Pleading--Plea and Answkh.
    A plea containing a full defense to tlie bill is waived by also filing an answer which goes to the whole bill; but if the answer does not go to the whole bill, and is filed merely to fortify the plea by denying allegations of fraud, this is in accordance with the requirement of equity rule 32, and any new matter, or prayer for affirmative relief, may be stricken out or regarded as surplusage.
    2. Same—Res Judicata.
    In a suit 1o set aside deeds for fraud, a plea of res judicata, need not specifically deny Hie charges of fraud in the bill concerning the deeds; there being1 no charge of fraud as to the obtaining1 of the judgments relied upon as a bar.
    3. Same.
    Equity rule 37, which provides that ‘‘no demurrer or plea shall be held bad and overruled upon argument only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or jilea,” does not apply where the plea extends to the whole bill.
    This was a suit in equity by Collis P. Huntington, as special receiver of 1be Central Land Company of.West Virginia, against John B. Laidley and others, to set aside a deed lor fraud. On motion to strike out plea and- answer.
    Simms & Enslow, George C. Sturgiss, and Maxwell Evarts, for complainant.
    James F. Brown, J. H. Holt, Win. E. Chilton, and A. F. Mathews, for defendants.
   GOFF, Circuit Judge.

The amended bill in this cause was filed January 26, 1894; and the plea and answer of the defendants, on the 26th of February, 1896. The case is now before the court on the complainant’s motion to strike out the said plea and answer. The defendants allege in the plea that the complainant is estopped from raising the matters and things set forth in the bill, because that most of them have been decided against tbe Central Land Company, of which complainant is receiver, in certain suits heretofore determined in the state courts of West Virginia, the same being courts of competent jurisdiction, and tbe judgments rendered therein being now unreversed and still in full force and effect, and also that the conrplainant by said judgments is equally concluded and prevented from raising ail the other matters set forth in the hill. The defendants accompany the plea with an answer denying the allegations of fraud as set out in the hill, and the facts on which the same are said to he founded, and asking for affirmative relief. Complainant insists that the plea goes to the whole of the amended bill, and that under our general chancery practice the same is overruled by the answer. The defendants claim that their pleading is justified by the thirty-second equity rule, which reads as follows, viz.:

“The defendant may, at any .time before the hill is taken for confessed, or afterwards with the leave of the court demur or plead to the whole hill, or part of it, and he maj'- demur to part, plead to part, and answer as to the residue; hut iu every case in which the hill specially charges .fraud or combination, a plea to such part must he accompanied with au answer fortifying the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded.”

It will be noticed from au examination of the pleadings that the plea proper is to the entire bill, and that the answer, so far as it is responsive to the bill, is only a denial of the fraud and combination, and the facts relating thereto, specifically set forth in the bill. Tbe defendants have thus availed themselves of their undoubted right to plead to the whole bill. If they had also answered the whole bill, then unquestionably the plea would have been thereby overruled. If such plea had contained in itself a full defense of the bill, an answer would have been unnecessary, and would have been taken as a waiver of the plea. Ferguson v. O’Harra, Pet. C. C. 493, Fed. Cas. Ad. 4,740; Sims v. Lyle, 4 Wash. C. C. 301, Fed. Cas. No. 12,891. The plea in the case at bar professes to cover the whole bill, and therefore, under our general equity practice, an answer was not necessary; nor has one, in the sense we use that word in, been filed. That part of the pleading- which is called the “answer” is intended, not as an answer to the entire bill, but it is tendered for the purpose of fortifying- the plea and denying the fraud charged, and is filed under the requirements of the latter part of said rule 32. As a matter of course, the new matter alleged and the affirmative relief asked should not have been incorporated into the pleading, which should have been confined to the purposes mentioned in that rule. That which was so improperly introduced into the pleading will be considered as surplusage, or stricken out, as may hereafter be deemed best. If tbe plea is good, it disposes of the allegations of fraud set forth in the hill concerning the deed made by Harah H. G-. Pennybacker to John B. Laidley, which were raised in the pleadings, and disposed of by the judgments rendered in-the suits brought and decided in the courts of the state of West Virginia, and it does so; by virtue of its power and effect as a plea of res adjudicata; and consequently it was not required that such allegations should be specially denied iu the plea filed in this cause, as the object: of the bill is to set said deed aside for the frauds said to have been committed preceding the rendition of the judgments so pleaded in bar, and no charge of fraud is made as to the obtaining of said judgments; it being kept in mind in this connection that the answer filed in support of the plea denies the charges of fraud pertaining to the other matters, as to which the jilea claims that the comjila inant is also concluded.'

In this case the defendants interposed no demurrer to this amended bill, or to any part thereof, nor did they jilead to part and answer as to the residue, but they pleaded to the whole bill; and as the bill specially charged fraud, and the rule required that in every cose of that character a plea to such jiart should be accompanied with an answer fortifying the plea and denying the fraud and combina lion alleged, as also the facts on which the charge was founded, such answer was made a part of the pleading. This we think was proper, and to hold otherwise would be to deny to defendants the right to file a jilea in a case in which fraud was charged, unless the ¡ilea ajijdied to a part only of the bill. Such (‘(instruction of (he rule mentioned is not, in our opinion, justified by the language of the same, nor warranted by the practice under it. But it must; be understood that the answer so accomjianying the plea will be restricted to the jmrjxiso of denying the fraud and combination charged, and that it cannot in the further proceedings in this cause he jmt to any other use. Buie 87, equity jiracfiee, referred to by counsel in argument, does not: apjily to this case, as the jilea here extends to the whole bill. If-the jilea had ajiplied to a jiart only, and an answer had been filed to the residue, which also extended in jiart to some matter covered by the plea, then that rule would have saved the jilea, in the absence of other objections that the answer had reference, to some part, of the same matter as was covered by the jilea. In other words, that rule only apjilies in cases where the demurrer or plea extends to only a jiart of the bill, and the answer is intended to cover the residin'. Under the practice as it existed jirevious to the adoption of this rule, if the jilea was to a jiart only, and the answer to the remainder, and such answer, by inadvertence or otherwise, referred to the matters covered by the ¡ilea, the ('fleet was to overrule the latter. The thirty-seventh rale was evidently intended to change that jmietice, as a careful examination of its provisions will show. It roads as follows:

"Xo demurrer or plea, shall lie held had and. overruled upon argument, only because the answer of (he do fondant may extend to some pari of the same uniitor as may he eovored by such demurrer or plea.”

The motion to strike out the plea and answer must be overruled. The effect they are to have, or the disposition that may be made of them, treating them as a part of the record of this ‘cause, is yet to be determined.  