16 Gratt. 434 | Va. | 1864
delivered the opinion of the court:
This case resembles, in many of its features, the three cases of the James River and Kanawha Company v. Lee, v. Wortham, and v. Macfarland recently
This court in deciding the three cases before referred to have gone very far towards the decision of this case. It was held in them that an office judgment against the defendant in an action of ejectment cannot become final by mere operation of law, and without the intervention of the court or a jury, but that an order for an enquiry of damages is necessary. So that if in this case no plea in abatement had been filed but an office judgment entered, the defendants’ plea of not guilty, though tendered after the 15th day of the next term, ought to have been received by the court. So also it ought to have been received if the plea in abatement had then or previously been withdrawn. Ought it not to have been received in addition to the plea in abatement? Or had not the defendants a right to waive or withdraw theii plea in abatement, and did they not in effect do so ?
A plea in abatement is admissible in an action of ejectment, notwithstanding the provision in the Oode chapter 135, section 13, which declares, that “the defen
Conceding then that the plea in abatement was admissible and valid, had not the defendants a right to plead not guilty in addition thereto %
It seems to be well settled, at least as a general rule, that where the defendant pleads in abatement, and the plaintiff demurs to it, and the plea is disallowed by the court, the judgment is not final, but only that the defendant answer over. But if the plaintiff take issue upon the plea, and it be found against the defendant,
. The Code, chapter 171, section 23, declares “ that the defendant in any action may plead as many several matters whether of law or fact as he shall think necessary.” This statute goes farther than the statute 4 and 5. Anne, Ch. 16, is very broad in its terms, and has received a very liberal construction by our courts. See the cases
•But without deciding this question, let us proceed to consider the other before stated, which is: had not the defendants a right to waive or withdraw their plea in abatement, and did they not in effect do so ?
After pleading in bar, no plea in abatement is admissible, unless it be of something which has-happened since the last continuance, and which makes the suit abateable only and does not ipso facto abate it. I Rob. Pr. 231, old ed. By pleading in bar, all matter in abatement is waived. Id. 164; Payne, &c. v. Grim, 2 Munf. 297.
"We are therefore of opinion that the judgment is erroneous and ought to be reversed, and the cause remanded, with instructions to permit the defendalits to withdraw their plea in abatement and plead not guilty, and for further proceedings to a final judgment. ■
Judgment reversed.