95 Wis. 627 | Wis. | 1897
• There are several questions presented on this appeal proper for consideration, some necessary and some not. This opinion will not be confined strictly to those necessary.
The distinction between a plea in abatement and a plea in bar is that the latter goes to the merits, and, if in accordance with the facts, shows that the plaintiff cannot maintain the action at any time, while the former sets up matter only tending to suspend the suit for the time being, without preventing the recommencement of the same at some future time when the facts relied upon for such suspension no longer exist. Chitty, PI. (16th Am. ed.), 462. The mere statement of the distinguishing characteristic between a plea in abatement and a plea in bar sufficiently shows that the matter in controversy was in abatement, strictly so called. It did not go to the cause of action at all, but only fixed terms upon which the remedy to enforce the cause of action could be made available. This was not the mere premature bring
There does not appear to have been any very decided ex
From the foregoing we conclude that the condition prescribed by cb. 278, Laws of 1883, precedent to the commencement of a suit by the former owner of lands, to avoid a tax •deed thereon, did not affect an existing cause of action to void such deed, or go to the jurisdiction of the court to entertain such cause of action, but qualified or restrained an existing right to the remedy to enforce such cause of action; hence, the nonperformance of such condition could only be taken advantage of by demurrer, if such failure appeared upon the face of the complaint, and, if not, as in this case, by plea in •abatement. Mo such plea having been interposed by defendant McMillan, the benefit of such statutory restraint upon the remedy was effectually waived and lost for all the purposes of the action unless in effect restored by the bringing in of the state as a defendant.
It follows, from the foregoing, that the state was properly made a party defendant, that its plea of abatement was properly sustained by the trial court, and that the judgment in abatement of the action was properly rendered.
By the Court.— The judgment of the circuit court is affirmed.