Culver v. Philadelphia, Baltimore & Washington Railroad

102 A. 980, 30 Del. 76, 7 Boyce 76, 1918 Del. LEXIS 13

• Court: Superior Court of Delaware
• Decided: February 7, 1918
• Docket: Summons Case No. 10
• Status: Published

Opinion

Boyce, J.,

delivering the opinion of the court:

[1] The law has settled the order of pleadings. This order should generally be pursued. A demurrer to the declaration should not precede a plea in abatement. After a plea in bar to the action, or after a demurrer to the declaration and judgment by the court on the demurrer, a plea in abatement comes too late, except, it may be, by leave of the court, for matter arising after the commencement of the action, or for matter without the knowledge of the defendant, at the time of pleading in bar, or demurring to the declaration, as in the case of Kirwan Mfg. Co. v. Truxton, 2 Pennewill, 48, 44 Atl. 427.

[2, 3] A plea in bar or a demurrer generally admits that there is no foundation for a plea in abatement. Besides the identity of the defendant in this case is clear.

The motion to strike out the plea in abatement is allowed.