88 Mo. 57 | Mo. | 1885
It is not necessary to consider the action of the trial court in denying plaintiff’s motion to strike out the separate plea in abatement, filed by defendant, J. W. Copeland, since, whether that motion was properly denied or not, cannot affect the result reached by the jury in trying the separate plea in abatement. But granting that it be necessary to rule the point, still the action of the trial court may well be upheld and this upon the ground that the motion, being in the nature of a demurrer to the plea, asks too much and should have been directed against that which was objectionable in the plea and no more. In one view, a view sustained by the analogies of the law in somewhat similar cases, the plaintiffs by going to trial on the plea in- abatement, after their motion to strike out had been denied, may be deemed, perhaps, to have waived any defects in the plea ; but even if this be not true, still the fact remains that on the trial of the plea, no evidence was introduced to show that J. W. Copeland, sued in attachment and made a defendant, had done any of the acts alleged by plaintiff as grounds for that attachment.
; In such circumstances as these, to reverse the judgment on the sole ground that the motion to strike out the plea in abatement should have prevailed, notwithstanding that plaintiffs had a fair trial on the plea and failed to sustain the issue joined by any evidence on their part, would be going further than we think the law requires us to go. Therefore, judgment affirmed.
