114 Va. 411 | Va. | 1913
delivered the opinion of the court.
At the same rules at which the declaration was filed in
Plea Ho. 1.
“And the said defendant comes in his own proper person and says that the court ought not to have or take any further cognizance • of the action aforesaid of the said plaintiff, because the said defendant says that at the time of the suing out of the writ in the said cause, March 14, 1911, and at the time of the filing of this plea there was pending in the said court a certain action at law in which the said Edwin M. Briggs was the sole plaintiff and the said Henry G. Leary was the sole defendant, which said action the said plaintiff in a plea of trespass sought to recover of the said defendant the sum of $5,000.00 damages, and that the said action was between the same parties, who are parties to this action, pending in the same court, and for the same cause, and having for its object the same object sought to be attained in this action. And the said defendant further avers that the said action has not been dismissed, but is now pending and undetermined in the said court. And this the defendant is ready to verify.
“Wherefore by reason of the said auter action pendant, the said defendant prays judgment of the said writ and declaration, that the same may be quashed.”
Plea Ho. 2.
“And the said defendant comes, in his own proper person, and says that -this court ought not to have or take any further cognizance of the action aforesaid of the said plaintiff, because the said defendant says that the sup
“Wherefore, by reason of the failure to commence the said action by a proper writ issuing from the said clerk’s office, the said defendant prays judgment of the said writ and declaration.”
At the next term of the court the plaintiff moved the court to strike out each of the pleas in abatement, which motion was sustained, and to which the order states the defendant excepted. The subsequent proceedings in the cause resulted in a verdict and judgment for the plaintiff. To that judgment this writ of error was awarded.
The only errors assigned are to the action of the trial court in striking out the said pleas.
The plaintiff insists that these assignments of error cannot be considered because no bill of exceptions was filed to the action of the court in striking out the pleas.
Under our decisions this objection seems to be well taken. In White v. Toncray, 9 Leigh (36 Va.) 347, it was: held that pleas tendered by a defendant in an action at law and rejected by the court are not a part of the record unless made so by a bill of exceptions to the rejection of' them, or by order of the court that they shall be made so. In that case the pleas had not been filed as in this, but, were rejected by the court when they were tendered because they were not a part of the record. “The record,” it was said in that case, “we are told, is made up of the writ (for the purpose of amending by it if necessary) ; the whole pleadings between the parties; papers of which profert is made or oyer demanded and such as have been specially submitted to the consideration of the court by
In Herrington v. Harkin’s Admr., 1 Rob. (40 Va.) 591, 602-3, Judge Allen said: “In White v. Toncray it was determined that if the pleas be tendered by the defendant and rejected by the court and he take no exception to the rejection of them, he shall be presumed in the appellate court to have acquiesced. In this case, it is true, the record sets out that the pleas were filed, but this in view of the subsequent motion to reject and the action of the court I consider as a mere note of the clerk and as showing nothing more than that the pleas were tendered.”
In Fry v. Leslie, 87 Va. 269, 12 S. E. 671, one of the
The pleas in abatement not being' a part of the record, the assignments of error based upon the action of the court in striking them out cannot be considered by this court, and those being the only errors assigned, this writ of error must be dismissed as improvidently awarded.
Writ Dismissed.