amended bill.138 Where the complainant amends his bill, he is entitled to a new answer to the new matter.1 134 One of several defendants, who has answered to the original bill, need not answer the amended bill, which does not affect his interests in any way.185 The court may, after amendment, refuse leave to file an answer which does not contain a defense to the matter presented by such amendment.136 It is proper to direct that the answer on file in a given case shall stand as an answer to the bill therein, amended on hearing, unless the amendment is of such a nature as requires a specific answer. 137 Where several defendants have answered an original bill separately, they have not a right to put in a joint answer to amendments to the bill.138

an original defendant is not authorized to answer the amended bill. Salisbury v. Miller, 14 Mich. 160; Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N. W. 841.

188 American Bible Soc. v. Hague, 10 Paige (N. Y.) 549; Bassett v. Salisbury Mfg. Co., 43 N. H. 569. Where the complainant amends his bill in a material matter, a reasonable timc should be given defendant within which to plead, answer, or demur, not only to the amendment, but to the amended bill. Davis v. Davis, 62 Miss. 818. "When complainant amends his bill in a material matter, the defendant may plead, answer, or demur to the same as if it were an original bill, no matter what may have been the state of the pleadings before the amendment was made." Davis v. Davis, 62 Miss. 818, citing 1 Daniell, Ch. Pl. & Pr. (5th Ed.) 409; 1 Barbour, Ch. Pr. 224; Bancroft v. Wardour, 2 Brown Ch. 63; Bosanquet v. Marsham, 4 Sim. 573; Cresy v. Bevan, 13 Sim. 354; Dillon v. Davis, 3 Tenn. Ch. 386.

134 Hagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270, 283.

185 Fitzhugh v. McPherson, 9 Gill & J. (Md.) 51; Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N. W. 841.

136 Foster, Fed. Pr. § 165, citing Chicago, M. & St. L. Ry. Co. T. Third Nat. Bank of Chicago, 134 U. S. 276.

187 Lindsey v. Lindsey, 40 Ill. App. 389.

188 Bard v. Chamberlain, 5 Ch. Sent. (N. Y.) 73.

(434)

CHAPTER XXII.

INTERLOCUTORY APPLICATIONS, AND ORDERS THEREON.

§ 413. In general.

An interlocutory application is a request made to the court for its interference in a matter arising in the progress of a cause or proceeding. It may relate either to the process of the court or to the protection of the property in litigation, pendente lite, or to any matter upon which the interference of the court is required at any time. Such applications are extremely various, and the occasions upon which they may be made are too numerous to be here discussed. They are divided into two classes,— motions and petitions. When made viva voce to the court they are called "motions." When they are made in writing they are called "petitions." There is no very distinct line of demarkation between the cases in which they should be made by motion and those in which they should be made by petition. Generally, any long or indirect statement of facts is required, application should be by petition. In other cases a motion is suf

where

ficient.2

$414. Motions.

A motion is an application to the court, either by a party to the proceedings or his counsel, not founded upon any written statement addressed to the court. In some jurisdictions, a mo

3

1 Bergen v. Jones, 4 Metc. (Mass.) 371; Shaft v. Phoenix Mut. Life. Ins. Co., 67 N. Y. 544; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1587; 1 Barbour, Ch. Pr. 565.

2 Receiver of State Bank v. First Nat. Bank of Plainfield, 34 N. J. Eq. 450; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1587; Jones v. Roberts, 12 Sim. 189; Shipbrooke v. Hinchinbrook, 13 Ves. 394; Heathcote v. Edwards, Jac. 504; Garratt v. Niblock, 5 Beav. 143.

People v. Ah Sam, 41 Cal. 645; Washington Park Club v. Baldwin, 59 Ill. App. 61; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1591. It is an applica

tion is required to be reduced to writing and contain a brief statement of the facts and objects of the motion. Under the English chancery practice, motions were either of course or special.5

415. Motions of course.

A motion of course requires no notice, as no opposition will be allowed to it. Under the English chancery practice, although motions of course might be made any day in term, they could not be made out of term, except on a seal day. Such motions are granted without the court being called upon to investigate the truth of any allegation or suggestion upon which they are founded. They are applications for an order which will be granted without hearing both sides, as a mere matter of routine.7

§ 416. Special or contested motions.

A special motion is one which it is not a matter of course to grant, but which the court, in the exercise of its discretion, may, on the facts established in support of the application, either grant or refuse. Such motions are either made ex parte or upon notice. Orders granted upon motions without notice are said

tion to the court by one of the parties in a case, or his counsel, in order to obtain some rule or order of court which he thinks necessary in the progress of the cause, or to give relief in a summary manner in some matter which would work injustice. 2 Bouvier, Law Dict. tit. "Motion."

See United States Equity Rule 6.

4 Foster, Fed. Pr. § 194. 52 Daniell, Ch. Pl. & Pr. (4th Ed.) 1591; Foster, Fed. Pr. § 194. 62 Daniell, Ch. Pl. & Pr. (4th Ed.) 1592. Motions are usually regulated by rule of court, and the distinction between motions of course and special motions, as laid down by the text writers, is largely destroyed by such rules, which frequently provide for notice of all motions.

7 Anderson, Law Dict.; Abbott, Law Dict.; Pratt v. Rice, 7 Nev. 123. See United States Equity Rule 5; Foster, Fed. Pr. § 195; United States v. Parrott, 1 McAll. 447, Fed. Cas. No. 15,999; Robinson v. Satterlee, 3 Sawy. 134, Fed. Cas. No. 11,967.

8 Pratt v. Rice, 7 Nev. 123; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1592; Foster, Fed. Pr. § 196.

to be ex parte, and the same term is applied to the motions upon which they are granted. Ex parte special motions must be supported by affidavit, and are uncommon, being usually granted to prevent irreparable injury to the moving party, which would otherwise occur if notice were given. Applications to set aside ex parte orders should be readily granted by the court." It is impossible to lay down any clear rule defining such motions. as may be made ex parte, and distinguishing them from such as require notice.10 Contested motions are made on notice to the adversary party, where he is afforded opportunity to resist the application. They can only be heard on notice.11

$ 417. Who may make a motion.

A motion may be made by or on behalf of any party to the record, provided he is not in contempt.12 A party in contempt, and until he is purged of it, will not be permitted to ask for the favor of the court, nor to take any aggressive proceeding against his adversary; but it is his right to take measures to protect himself, and to make any motion designed to show that the order adjudging him in contempt was erroneous. He may move to discharge an order, though in contempt for not obeying it. And if a party may move to set aside or discharge an order as erroneous, to rid himself of contempt, he may, it must follow,

Pratt v. Rice, 7 Nev. 123; Foster, Fed. Pr. § 196; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1599; Hart v. Small, 4 Paige (N. Y.) 551; Collinson v. 18 Ves. 353.

10 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1593.

11 Anderson, Law Dict.; Sturz v. Fisher, 15 Misc. Rep. 410, 36 N. Y. Supp. 893. Rule 3 of the chancery rules of the circuit and superior courts, respectively, of Cook county, Illinois, provides that contested motions shall be deemed to include all motions relating to the settling of pleadings, for alimony and solicitors' fees, for injunctions upon notice, to dissolve injunctions, for the appointment and removal of receivers, the hearing of exceptions to masters' and receivers' reports, and all other opposed motions, the hearing of which would operate to unduly delay the court in its other duties.

12 Beach, Mod. Eq. Pr. § 555; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1591; Stone v. Byrne, 5 Brown, Parl. Cas. 209; O'Dell v. Hart, 1 Molloy, 492; Callender v. Painesville & H. R. Co., 11 Ohio St. 516.

take any other course which the law allows to a party to establish that it is erroneous, and an appeal or a review of it in an appellate court is such other course.18 An attachment issued against a party after he has served a notice of motion, but before the motion is made, will not prevent his making it.14 As a general rule, no motion can be made in a cause by one not a party to it, except that he be made a party;15 but a person who is quasi a party to the record, such as a claimant coming in under a decree, or a purchaser of an estate sold by an order of the court, may apply to the court in this manner, though it was formerly considered that he could only do so by petition.16

418. Notice of motions.

The necessity of giving notice of the motion to an adverse party is usually regulated by statute or rule of court, and varies in the different jurisdictions. The notice of motion is a statement in writing of the terms of the motion, which must be served upon the adverse party or his solicitor before the day on which the motion is intended to be made.17 It is entitled in the cause in which the application is to be made, and should be correctly addressed to the solicitor of the party intended to be affected, or to the party himself, where he acts in person, or personal service is intended, and be signed by the name of the solicitor of the moving party, or of the party himself, where he acts in person. It must designate the day on which the motion is to be made, which must be one of the days appointed for such motions, unless special leave has been obtained to give the

13 Brinkley v. Brinkley, 47 N. Y. 40. See, also, Johnson v. Pinney, 1 Paige (N. Y.) 646; Rogers v. Paterson, 4 Paige (N. Y.) 450; Lane v. Ellzey, 4 Hen. & M. (Va.) 504; Robinson v. Owen, 46 N. H. 38; Kaehler v. Dobberpuhl, 56 Wis. 497; Freese v. Swayze, 26 N. J. Eq. 437. See post, § 559.

14 Jeyes v. Foreman, 6 Sim. 384.

15 Ross v. Titsworth, 37 N. J. Eq. 333; Beach, Mod. Eq. Pr. § 555; Linn v. Wheeler, 21 N. J. Eq. 231.

16 Thornton v. Fairfax, 29 Grat. (Va.) 669; 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1591; Jones v. Roberts, 12 Sim. 189; Portarlington v. Damer, 2 Phillips, 264.

17 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1593.