Akerly v. Vilas ( 1866 )

Both parties moved for a rebearing.

Downer, J.

The counsel for the defendant Vilas contends in his argument on the motions for a rehearing, that the plaintiff, by replying to the counter-claims in the answer, waived all objections thereto. It is not necessary for us to decide what the effect of the replication, followed by a trial of the issue thus formed, and a judgment thereon, would have been; for we are of opinion that if, within a reasonable time after the remittitur is transmitted to the circuit court, the plaintiff shall there move for leave to withdraw the replication to so much of the answer as sets up the counter-claims not authorized by the statute, and to demur to such counter-claims, the circuit court ought to grant the motion.

By the Court.- — The motions for a rehearing are each overruled.