Wilson v. Atwood

4 Mo. 366

• Court: Supreme Court of Missouri
• Decided: June 15, 1836
• Status: Published

Opinion

Opinion delivered by

Wash Judge.

This was an action commenced by petition and summons in the St. Louis circuit court by Wilson and Jones, against Atwood the plaintiffin error, and one James Robb and one John F. Foster. Atwood alone was served with the process, and pleaded in abatement, that James Robb, one of the defendants in the petition .and writ mentioned, was at the time of filing the petition and suing out the writ, dead &c. To this plea, the plaintiffs below demurred generally, and the court on the hearing o.f the demurrer, held the plea bad, and gave judgment for the plaintiffs, to reverse which, Atwood has come with his writ of error to this court.

The only question presented for the consideration of the court, arising out of the record is, whether a general judgment of recovery is the proper judgment on a demur-t0 aP^ea abatement? It is quite clear that itis not, ail(I that the judgment should have been that the defendant answer over. It is not for the court perhaps, to express regret that a judgment should be reversed for an error Purely technical, but it must be so. The judgment of the circuit court is reversed with costs, and the cause re-man

’. The same v. The same. The same questions precisely is presented in this case, and the decision above disposes of it.