52 A.2d 786 | Vt. | 1947
This is an action in contract brought by a purported New Hampshire corporation. The writ was dated July 2, 1946, and served and entered in court on July 11, 1946. The following day the defendant entered a general appearance. The case was set for trial on Oct. 23, 1946, and on that day the defendant filed a plea which he terms a plea to the jurisdiction, alleging the non-existence of the plaintiff as a corporation and its incapacity to sue. Hearing was had by the court and findings were made and filed, which included a finding that the charter of the plaintiff corporation had been repealed, revoked and annulled by Act of *120 the New Hampshire Legislature in 1939, and that no action had thereafter been taken to reinstate the plaintiff as a corporation. To this finding no exception was taken. The court adjudged the plea sufficient, dismissed the writ and the cause of action, and passed the case to this Court upon the plaintiff's exceptions.
The question presented by the plaintiff's brief is whether the defendant waived his right to object to the alleged non-existence of the plaintiff and its incapacity to sue by entering a general appearance, joining issue in general denial, and failing to file its special plea within the time allowed for filing dilatory pleas.
The defendant's plea must be held to be what in fact it is, regardless of the fact that he has termed it a plea to the jurisdiction. Bellows v. Sowles,
It follows that the court could have treated the plea as *121
being either a plea in bar or a plea in abatement. But dilatory pleas are not favored by the court and must be urged at the earliest opportunity. If this is not done the defect will be deemed to be waived. Coolbeth v. Gove,
It is true that by pleading general denial the defendant had admitted the corporate existence of the plaintiff and its capacity to sue, Boston Type and S. Foundry v. Spooner, supra,Dohorty v. Madgett,
Permitting the defendant to file a plea which the court properly considered a plea in bar, denying the existence of the plaintiff and its capacity to sue would amount to a discretionary ruling that the defendant was relieved from the admission previously made by pleading general denial. The contrary not appearing we must assume that the court's discretion was properly exercised upon the basis of the required finding that such admission was made improvidently and by mistake. We also assume, *122
in support of the judgment, that the trial court treated the plea in question as a plea in bar. Cleveland v. Rand,
Judgment that the defendant's plea is sufficient and dismissingthe writ and cause of action is affirmed.