| Conn. | Feb 15, 1870
The motion to erase from the docket in this case is in the nature of a plea in abatement. It is not founded upon any want of jurisdiction in the court over the subject matter of the suit, or the parties, but on the incapacity of the plaintiff to sue or prosecute the action. If granted it defeats the present action without reference to the merits of the cause, and subjects the plaintiff to the expense of bringing a new action, and possibly to a loss of the debt. It is therefore a dilatory plea in the strictest sense. According to the practice in this state courts erase from the docket only where it appears upon the record that the court has no jurisdiction. In this case the alleged cause for erasing from the docket does not appear on the record, but is brought to the attention of the court by way of a motion in writing, which
The motion came too late. The plaintiff died in the spring of 1868. The administratrix entered to prosecute in October following. In October, 1869, the objection was made that the entry was too late. In the December term following, bonds were called for and given; the case was assigned for trial, and when reached this motion was filed. No case can be found in which a plea of this nature has been allowed after such a lapse of time, accompanied with the ordinary proceedings in the cause.
The fact that the defendant and his counsel were ignorant of the circumstances is no excuse. Ignorance of a cause of abatement will never justify the filing of a plea after the time limited. When the cause arises subsequent to the first day of the term, the defendant must inform himself, and file his plea within a reasonable time or it will be too late. In this case the defendant by the use of ordinary diligence might have ascertained the facts at an early day. Perhaps he should have done so, and have taken the exception at the time the administratrix entered if he had notice. At all events it should have been done within a reasonable time. In this case more than a reasonable time had elapsed, and the Superior Court must be advised not to erase the case from the docket.
In this opinion the other judges concui’red.