Hatry v. Shuman

13 Mo. 547

Opinion

RYLAND, J.'

Prom the above statement, the only point for the consideration of this court arises from the action of tlie court below in striking out the defendant’s plea, putting in issue the truth of the affidavit on which the attach'ment issued in this case. This plea is said, by the statute permitting the defendant in attachment to file it, to be a plea in the nature of a plea in abatement. Such a plea has been heretofore considered by this court to be “ a plea in abatement.” See Livengood v. Shaw, 10 Mo. R. 276. I am of the opinion that this is the correct and proper construction, and that puch a plea is simply a plea in abatement. It is governed by the same rules and liable to the same consequences, as it partakes of the nature of a plea in abatement.(

Footnotes

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a)

The defendant in the court below filed on the same day his plea to the merits of the action, after he had first filed his plea in abatement. The plaintiff subsequently moved the court to strike out the plea in abatement, because the defendant had, after filing it, plead to the merits of the action. The court sustained this motion, and struck out the plea in abatement. The trial was after-wards had upon the merits, and the plaintiff obtained judgment.(b)

During the pendency of the motion of the plaintiff to strike o.ut the defendant’s plea in abatement, the defendant moved the court for leave to withdraw his plea to the merits—’this was refused. The defendant excepted to the opinion of the court in refusing him leave to withdraw his plea to the merits, also excepted to the opinion of the court in striking out the plea in abatement.

The filing of a plea to the merits after one in abatement had been filed, was, in my opinion, properly considered by the court below a waiver of the plea in abatement, and the court decided correctly in striking out the plea. I find no fault with the court below in refusing the defendant leave to withdraw his plea to the merits. Dilatory pleas—pleas in abatement, have never met with much favor in courts of justice—nor do I feel inclined to reverse this feeling. Erom the whole view of the case then, I am inclined to think the court below decided properly and that its judgment should be affirmed. Its judgment is accordingly affirmed.

(a) Sec Cayce v. Ragsdale, 17 Mo. R. 32; Middleton v. Frame, 21 Mo. R. 412.

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(b) 1 Wag. Stat. p. 180, § 41. Also, sec Cannon v. McManus, 17 MO. R. 345; Green v. Craig, 47 Mo. R. 92.