This is an action of assumpsit brought to recover the purchase рrice of three car loads of hay, alleged to have been sold'by the plaintiff to the defendant. The defendant, appearing specially for that purpose, pleaded in abatеment for lack of sufficient service. This was on July 30, 1912. The defendant was а non-resident, and alleged in his plea that Austin T. Booth, upon whom as his agent service had been made, was not his agent at the time, and issue was joined on this averment.
On March 31, 1913, the defendant moved to dismiss the writ for lack of sufficient service and for lack of jurisdiction. These motions were severally overruled and the defendant exceрted.
Afterwards, a jury trial was had on the issue joined as above, and a verdict rendered for the plaintiff; thereby establishing the fact that thе party served on was the defendant’s agent. The court thereupon rendered judgment in chief for the plaintiff, and ordered an assessment of damages by the clerk. To the rendering of judgment in' chief, the defendant excepted, but he found no fault with the order for an assessment.
That the court had jurisdiction of the process and the subject-matter, and that its jurisdiction over the defendant was alone in questiоn, is quite apparent. The plaintiff admits that the defendant was a nоn-resident, and that the service of the writ was not in statutory form, and that thе 'action would have been dismissed, if proper objection hаd been seasonably made; but he insists that the defendant, by his conduct, wаived the right to file his motions.
At the outset the defendant had a choiсe between two methods of procedure. He could movе to dismiss for apparent defects of service; or he cоuld plead in abatement for defects not shown. He could not dо both. To hold otherwise would be to allow the defendant, in effect, to file three pleas in abatement, which is not permissible. Culver v. Balch,
Moreovеr, when he filed his plea, the defendant not only-determined his procedure, but he submitted to the jurisdiction of the court so far as to enable it to try any issue properly joined thereon. With an issue of fact joined on the record at his own invitation, he could not assert оther matters of abatement by his motions. Such procedure is inconsistent and unallowable. Whether or not the plea could have been recalled, we need not say; certainly, it could not withоut leave of court.
There is another reason why the excеptions to the court’s action in overruling the motions are unavailing. The motions were out of time. They were dilatory objections and should have been asserted within the time allowed by. the rules of cоurt for filing dilatory pleas. They set up defects of service which the defendant could waive, and the plaintiff was entitled to have thеm overruled. Wade v. Wade’s Admr.,
Nor was there error in the judgment rendered. When, under a plea in abatement, an issue of fact is found for the plaintiff, judgment in сhief is awarded him. 1 Chit. Pl. 465; Jericho v. Underhill,
Judgment affirmed and cause remanded for the assessment of d-amages.