128 Mass. 600 | Mass. | 1880
If a defendant pleads in abatement of the writ, and to the merits of the action, in the proper order, the fact that both pleas are filed at the same time, and even upon the same paper, does not, in this Commonwealth, operate as a waiver of the plea in abatement, if seasonably filed. This mode of pleading is often convenient to both parties; to the defendant by stating, and to the plaintiff by giving him notice of, all the defences on which the defendant intends successively to rely, if the trial and judgment upon the first shall not dispose of the whole case; and it is sanctioned by a usage of more than a century. Province v. Paxton, Quincy, 548. Fletcher v. Vassal, 5 Dane Ab. 691, 710. Fisher v. Fraprie, 125 Mass. 472. The remarks in Pratt v. Sanger, 4 Gray, 84, 88, in Morton v. Sweetser, 12 Allen, 134, 137, and in Machinists' Bank v. Dean, 124 Mass. 81, 83, so far as they tend to discountenance it, are obiter dicta, and are unsupported by the authorities there referred to.
In Pratt v. Sanger, and in Machinists’ Bank v. Dean, the plea in abatement was filed too late. Campbell v. Stiles, 9 Mass. 217, and Coffin v. Jones, 5 Pick. 61, decided no more than that a plea of abatement could not be filed after an imparlance. In Simonds v. Parker, 1 Met. 508, the decision was that a motion to quash a writ, or to dismiss an action, like a plea in abatement, could not be filed after the first term, nor after a plea in bar; and in Kittridge v. Bancroft, reported with it, the only further decision as to a plea in abatement was, that when a fact, not appearing on the record, had been pleaded in abatement, and a replication to that plea filed, traversing the fact, but no issue had been joined, and no notice taken of that plea in the record, it must be understood to have been abandoned.
In Morton v. Sweetser, the answer began by stating defences on the merits, and ended with setting up matter of abatement,
In the case now before us, therefore, the plea in abatement was not waived by the answer to the merits filed with it in the Municipal Court; but it was properly tried first; and the issue joined thereon being a question of fact, and found for the plaintiff, a general judgment in the action might rightly be rendered for him in that court. Gen. Sts. c. 129, § 39. St. 1867, c. 355, § 2. Young v. Gilles, 113 Mass. 34.
But the proceedings in the Superior Court present a more serious difficulty. The subject of the action exceeding twenty dollars in value, the defendant, by the Constitution of the Commonwealth, had the right to a trial by jury on any issue of fact duly pleaded. Declaration of Rights, art. 15. That right is sufficiently secured by allowing him a trial by jury, either in the Municipal Court, or in the Superior Court on appeal. Hapgood v. Doherty, 8 Gray, 373. But the Legislature cannot wholly deny him such a trial.
The provision of the act relating to the municipal courts of Boston of 1874, c. 271, § 11, that “ upon pleas in abatement, or motions to dismiss for defect of form in process, the decisions of said courts shall be final,” applies to decisions upon questions of law only, as appears by referring to the Gen. Sts. c. 115, § 7, concerning decisions of a justice of the Superior Court or of this court, from which it was evidently copied. The St. of 1874, c. 271, further provides, in § 12, that “in all civil actions and proceedings in the Municipal Court of Boston appeals shall lie to the Superior Court; ” and as that statute allows no trial by jury in the Municipal Court of Boston, (as distinguished from the courts for the Southern, the Dorchester and the Charles-town Districts,) it could not, in a case like this, without violating the Constitution, make the decision of that court upon a question of fact final, in the sense of precluding the defend
The defendant therefore had the right to claim a trial by jury in the Superior Court. But such trial must be had upon the answer in abatement filed in the Municipal Court, unless the Superior Court shall order or permit him to plead anew. Gen. Sts. c. 120, § 28. Wilbur v. Taber, 9 Gray, 361. Lew v. Lowell, 6 Allen, 25. Judgment for the plaintiff set aside.
