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eBook details

• Title: Pearson v. Mulloney Et Al.
• Author : Supreme Court of Minnesota
• Release Date : January 25, 1935
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

LUMMUS, Justice. The plaintiff, as receiver of Federal National Bank of Boston by appointment of the Comptroller of the Currency, brought this suit on September 9, 1932, to enforce the rights of said bank in an apartment house which the bank had bought on foreclosure sale and had conveyed to the defendant Gallagher on February 1, 1930, taking back a first mortgage for $180,000. On December 28, 1932, Inman Trust Company, in possession of Arthur Guy, commissioner of banks of the commonwealth, by leave of court filed an intervening petition in the suit to set up the rights of the trust company under a second mortgage for $25,730 upon the same premises, given to it by Gallagher on February 1, 1930. The plaintiff demurred to the intervening petition, and the Judge ordered the hearing on the demurrer postponed until the hearing on the merits. This was within his discretion. Although relief can be given in equity only within the scope of the pleadings, a party has no right to insist that the determination of the facts be delayed until the pleadings shall have been perfected. In its discretion, sometimes exercised in close cases, a court may find the facts first, and discuss afterwards the technical sufficiency of the words of the pleadings. Brownsword v. Edwards, 2 Ves. Sr., 243; State of Kansas v. Colorado, 185 U. S. 125, 22 S. Ct. 552, 46 L. Ed. 838; Commonwealth of Virginia v. West Virginia, 206 U. S. 290, 27 S. Ct. 732, 51 L. Ed. 1068; State of Wisconsin v. Illinois, 270 U. S. 634, 46 S. Ct. 354, 70 L. Ed. 772. See also Stratton v. Hernon, 154 Mass. 310, 313, 28 N.E. 269; Saltman v. Nesson, 201 Mass. 534, 540, 88 N.E. 3; Glover v. Waltham Laundry Co., 235 Mass. 330, 339, 127 N.E. 420; Cram v. Cram, 262 Mass. 509, 513, 160 N.E. 337; Rule 28 of the Superior Court (1932).

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