Charter Oak Council, Boy Scouts v. New Hartford

2 Conn. Super. Ct. 3, 2 Conn. Supp. 3, 1935 Conn. Super. LEXIS 177

Opinion

PEASLEY, J.

The allegations of this Plea in Abatement go to the merits of the case.

“Pleas in Abatement are not to the merits, but to the form of the action: they admit, or suppose, that the plaintiff has good cause of action but deny that the suit in question is brought in proper form — they defeat the present proceeding, but do not show that the plaintiff is thereby forever excluded from bringing an action.” Vqí. 1, Swift’s Digest, side page 606. The grounds of abatement are:

Lack of jurisdiction,

Disability of parties,

Misnomer and misdescription,

Death of parties,

Nonjoinder and misjoinder,

Pendency of another action,

Defective writ,

Defective Service.

The matters pleaded in abatement in this action are wholly outside of the scope of any one of the above grounds of abatement, which I think are all there are.

The demurrer appears to assume that a plea in abatement may be to the merits of the case and as no one of the reasons assigned touches its real weakness it is overruled — the plea in abatement however is so obviously out of place that without further pleading being addressed to it, it is overruled.