Burton v. Metropolitan Life Insurance

Russell, C. J.,

dissenting. Upon the question whether a case-should be transferred from this court to the Court of Appeals, the *901question which arises is whether this court has jurisdiction of the cause of action. The question is not whether the pleadings are perfect, but whether the case as stated is one in which the intervention of a court of equity is sought. If it is apparent from a petition and single prayer of the same that the plaintiff seeks the aid of equity, alleging, as she does in this case, that she has no adequate remedy at law, then to send the case to the Court of Appeals 'will be merely a ruling by this court that the petition is subject to demurrer. We would really be exercising jurisdiction in holding that the petition is demurrable. This petition asked for equitable relief. One of the prayers asked for all and any other equitable relief that may be adjusted to the plaintiff’s case. Under our liberal rules of amendment, “as broad as the plan of salvation,” it is easily to be perceived that the skeleton now before us requires amendment; but there are statements of rights which may be supplied in this petition which might be admissible under the rules of equity, such as facts which might prevent the bar of the statute, where more adequate relief would be supplied than in a court of law. This is only one instance, among others that might be given, where the rules of equity are much more beneficent than those at common law. But if this court holds that the suit is a mere action at law, then that is to hold that the prayers in the petition are not subject to amendment. I think the prayers are amendable. I think the statements of the petition would admit of amendment. I think that the petition, though defective, is not so repugnant to the principles of equity that the petitioner should be denied a review of her case by this court.