29 Conn. 515 | Conn. | 1861
I have no doubt that the plea in abatement filed before the justice ought there to have prevailed. Another
It is clear, too, that the defendant’s motion to appeal from the judgment on the plea in abatement ought to have been entertained by the justice at the time it was made, and (the requisite security for the prosecution of the appeal being tendered,) the appeal ought to have been allowed. But the question now is, whether the defendant has resorted to the proper remedy for the protection of his rights ; whether, after having pleaded to the action, tried the case upon its merits, and after having had a final judgment rendered against him upon such trial, he could appeal from both judgments to the superior court, and then set up and try his plea in abatement again. I think he could not. By pleading to the action he waived his plea in abatement, and his right to appeal from the judgment thereon, and could not afterwards avail himself of either. See King v. Lacy, 8 Conn., 499. The law has prescribed and settled the order of pleading which the defendant is to pursue, and after a plea in bar to the action, he can not plead in abatement, unless for matter arising after the commencement of the suit. 1 Chitty Pl., 425, 6. A plea to the action is a tacit admission that the mode in which the plaintiff’s remedy is pursued is correct. Gould Pl., 44. See also Wickwire v. The State, 19 Conn., 477, and Ives v. Finch, 22 id., 101.
The right to appeal from the judgment on the plea in abatement was one which the justice had fio power to deny, and he could have been compelled to entertain the defendant’s motion and allow such appeal. So the defendant was under no obligation to obey the justice’s order to answer over, but he had a right to waive his plea in abatement, and by pleading to the
In the case of Curtiss v. Beardsley, supra, Judge Hinman, in giving the opinion of the court, says (p. 523,) “ As respects the merits of the cause, the parties may plead anew as if there had never been any pleadings in the inferior court; ” and this I take to be the correct doctrine. And in the case of Wickwire v. The State, before cited, it was held that, after a demurrer overruled by the justice, the defendant was not at liberty in the appellate court to plead in abatement a matter which might have been pleaded in the justice’s court prior to the demurrer, because the allowance of such a plea would be in subversion of the rules in regard to the order of pleading established by the common law ; mere matter of abatement being, by a plea to the action, in legal contemplation waived or admitted to be untrue or insufficient. And if, when no plea in abatement has been filed, a plea to.the action is construed a waiver of the right to make such plea, a fortiori ought it to
For the refusal of the justice to entertain the defendant’s motion, the defendant had undoubtedly a plain and effective legal remedy which he omitted to apply, and lost by his voluntary submission to the arbitrary and illegal determination of the justice.
In the case of Blackman v. Beha, 24 Conn., 331, judgment was rendered against the defendants upon their plea in abatement, and they were ordered to answer over, which they refused to do, and thereupon the justice rendered a final judg.ment for the plaintiff to recover his damages and costs. Then the defendants appealed from the first judgment on their plea in abatement, leaving the final judgment unappealed from and in force ; and this court decided that that proceeding was irregular, and that the appeal could not be entertained by the superior court while the final judgment was outstanding and in force. Judge Ellsworth, in that case, indeed seems to intimate that an appeal might have been taken from both judgments, when he says, on page 333, “ an appeal from the plea in abatement only did not vacate the final judgment,” but the question whether an appeal could have been taken from both judgments, or how an appeal from the last one would have affected the defendant’s right to try his plea in abatement in the appellate court, was not decided, and did not arise in the case. It is to be observed also,-that in that case nothing had been done by the defendant from which his waiver or abandonment of the plea in abatement could be implied. In this case the defendant did a positive act which by legal implication amounts to such abandonment.
I think this defendant should have refused to answer over, insisted upon his appeal, and by mandamus or otherwise compelled the justice to entertain and allow his motion. And if, in the mean time, the justice had rendered his final judgment} that should have been regularly reversed and vacated in due course of law.
Upon the whole I think the course pursued was irregular,
New trial advised.