Jaha v. Belleg

105 Mass. 208

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Gray, J.

This report was made under the St. of 1869, c. 438, by which “ questions of law, whether arising upon a trial or other proceeding before the superior court, may, by consent of the parties to the suit, be reported before verdict ” for the determination of this court. Before that statute, no question could be reported co this court by the superior court before verdict; Gen. Sts. <?. 115, § 6; Minot v. Sawyer, 1 Allen, 18 , and questions arising in that court upon pleas or answers in abatement could not be brought to this court at all, by report, exceptions or otherwise. Gen. Sts. c. 114, § 10; c. 115, § 7. Stackpole v. Hunt, 9 Allen, 539. Hamlin v. Jacobs, 99 Mass. 500, and cases cited. But, even then, the question whether an answer in abatement was seasonably filed in that court might after final judgment be brought to this court by exceptions. Hastings v. Bolton, 1 Allen, 529. And we have no doubt that any question arising in a civil action before verdict in the superior court, which might under the former statutes have been brought to this court by exceptions, may now, under the St. of 1869, e. 438, be brought up by report. The question whether the answer in abatement was seasonably filed is therefore properly before us for adjudication.

But it is well settled that mere matters of abatement, not affecting the jurisdiction of the court, cannot be pleaded after answering to the merits; and that, at least in an action of tort for an injury to the person of the plaintiff, for which an action may be maintained by some one, the plaintiff’s disability to sue in person can be pleaded in abatement only. Such is the rule when an infant sues in his own name, without the appointment of a guardian or next friend, or when a married woman sues alone, without joining her husband. Schemerhorn v. Jenkins, 7 Johns. 373. Hayden v. Attleborough, 7 Gray, 338. 1 Chit. Pl. (6th Am. ed.) 436, 437. Steph. Pl. (1st Am. ed.) 66, and note 23. The same rule governs the case at bar; for it is not contended, in the learned argument for the defendants, that an injury to the person of an Indian residing in this Commonwealth affords no cause of action whatever; but only that the action must be brought in the name of a guardian, and not of the Indian himself. The answer in abatement was therefore filed too late.

The questions whether the matters alleged, if seasonably pleaded, would have abated the writ, and could have been reported to this court for determination, cannot be decided in this case; and can hardly arise in any other, inasmuch as, by the St. of 1869, c. 463, all Indians within the Commonwealth are made and declared to be citizens of the Commonwealth, and entitled to all the rights, privileges and immunities, and subject to all the duties and liabilities of such citizens.

According to the agreement of the parties and the terms of the report, the defendants are to Answer over.