Templeton v. Clary

Indiana Supreme Court

Templeton v. Clary

1 Blackf. 288, 1823 Ind. LEXIS 29

DecidedNovember 13, 1823

StatusPublished

This text of 1 Blackf. 288 (Templeton v. Clary) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Templeton v. Clary, 1 Blackf. 288, 1823 Ind. LEXIS 29 (Ind. 1823).

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Opinion

Blackford, J.

This was an action by a feme sole. After several continuances, the defendants below pleaded the general issue, upon which a verdict and judgment were given for the [289]*289plaintiff. That judgment was afterwards reversed upon a Writ •of error, and the proceedings subsequent to the plea inclusive, were set aside. At the first opportunity after the cause was remanded, the defendants pleaded in abatement, that the plaintiff, pending the writ, viz. on the 23d of July, 1818, had married, and that her husband was still living. This plea, verified by affidavit, was, upon motion, set aside by the Circuit Court. Judgment was afterwards entered by default, damages were assessed, and a final judgment was rendered for the plaintiff.

Caswell, for the appellants. Test, for the appellee.

The question for our consideration is, was the Court correct in rejecting the plea upon motion? It is contended by the appellee that the plea, being offered after a general imparlance, could not be received for want of the words puis darrein continuance. The appellants argue, that, before issue joined, the coverture might be pleaded pending the writ; or if not, still, the day of the coverture as stated in the plea being subsequent to the last continuance, as was apparent to the Court from the previous proceedings, they contend that the motion to reject the plea should have been overruled. We give no opinion at present as to the sufficiency of this plea. The objection urged against it for uncertainty, whether well founded or otherwise, could only have been brought before the Circuit Court for decision by means of a demurrer. The motion to reject the plea was irregular, and should have been overruled by the Court below.

Per Curiam.

The judgment is reversed, and, except the change of venue, the proceedings subsequent to the motion t® reject the plea are set aside, with costs. Cause remanded, &c.

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Blackford, J.

This was an action by a feme sole. After several continuances, the defendants below pleaded the general issue, upon which a verdict and judgment were given for the [289]*289plaintiff. That judgment was afterwards reversed upon a Writ •of error, and the proceedings subsequent to the plea inclusive, were set aside. At the first opportunity after the cause was remanded, the defendants pleaded in abatement, that the plaintiff, pending the writ, viz. on the 23d of July, 1818, had married, and that her husband was still living. This plea, verified by affidavit, was, upon motion, set aside by the Circuit Court. Judgment was afterwards entered by default, damages were assessed, and a final judgment was rendered for the plaintiff.

Caswell, for the appellants. Test, for the appellee.

The question for our consideration is, was the Court correct in rejecting the plea upon motion? It is contended by the appellee that the plea, being offered after a general imparlance, could not be received for want of the words puis darrein continuance. The appellants argue, that, before issue joined, the coverture might be pleaded pending the writ; or if not, still, the day of the coverture as stated in the plea being subsequent to the last continuance, as was apparent to the Court from the previous proceedings, they contend that the motion to reject the plea should have been overruled. We give no opinion at present as to the sufficiency of this plea. The objection urged against it for uncertainty, whether well founded or otherwise, could only have been brought before the Circuit Court for decision by means of a demurrer. The motion to reject the plea was irregular, and should have been overruled by the Court below.

Per Curiam.

The judgment is reversed, and, except the change of venue, the proceedings subsequent to the motion t® reject the plea are set aside, with costs. Cause remanded, &c.

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Bluebook (online)

1 Blackf. 288, 1823 Ind. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/templeton-v-clary-ind-1823.