Cannon v. McManus, 17 Mo. 345

Cannon v. McManus

17 Mo. 345 | Mo. | 1852

Ryland, Judge,

delivered the opinion of the court.

1. From the foregoing statement, the question arises, whether a defendant, against whom an attachment has issued, can, in the same answer, respond to the merits of the plaintiff’s petition and deny the facts stated in the affidavitthus making his answer operate in bar to the action and in abatement to the action at the same time. We think not. The defendant must, if he intends to put the truth of the plaintiff’s affidavit in issue, do so by his answer, or by his plea in the nature of a plea in abatement. He cannot be allowed to answer to the action upon the merits, and at the same time make the answer a plea in abatement. The new code of practice, art. 5, §15, provides that “suits maybe brought by attachment in the cases, and conducted in the manner authorized by statute in such cases : Provided, that the pleadings and procedure shall be, as near as may be, according to the provisions of this act.” The twenty-fifth section of the attachment act of 1845, art. 1, p. 139, declares that, “ in all cases where property or effects shall be attached, the defendant may file a plea in the nature of a plea *347in abatement, without oath, putting in issue the truth of the facts alleged in the affidavit on which the attachment was sued out.”

In the opinion of this court, the defendant, desiring to put the truth of the facts stated in the affidavit in issue, must do so still, by his plea in the nature of a plea in abatement, or by his answer, denying the facts stated in the affidavit alone. No principle is better settled than that a party, by pleading in bar, waives all dilatory pleas. The object of the plea or answer, denying the truth of the facts set forth in the affidavit, is' not to determine the merits of the action, but to turn the plaintiff out of court and compel him to begin anew.

The answer of a defendant in a suit by attachment, containing matters of defence to the action, as well as a denial of the truth of the facts stated in the affidavit, must be construed as an answer in bar, and thereby precludes the party from trying the issue tendered in abatement.

The law commissioner, then, did right, in disregarding that part of the answer in which the facts in the affidavit were denied. The judgment, therefore, must be affirmed,

the other judges concurring.