21 Wash. 33 | Wash. | 1899
The opinion of the court was delivered by
Application for prohibition to the superior court of Pierce county. The petition for the writ shows that in October, 1895, an action was commenced by the relator against Samuel Parker and J. P.
The case was submitted upon respondents’ demurrer to the petition. We are of opinion that the writ should issue. Under the common law system of pleading, a plea of abatement was required to precede a plea in bar. By the entry of the latter plea the former was deemed waived, the reason for this being that, by contesting the merits of plaintiff’s claim, a defendant was deemed to have waived any objection to the mode of procedure which plaintiff was pursuing. By the adoption of the code a simple and uniform mode
If the objection to the complaint appears upon its face, defendant’s remedy is to demur. Failing to do so, he is deemed to have waived the objection. If the objection is not disclosed by the complaint, then the remedy of defendant is to set it up by answer. In the present case it was the right of the defendant to couple with the plea of plaintiff’s death a plea to the merits of the action, and it would have been proper for either party, or for the court upon its own motion, to have required a special finding from the jury upon the question of plaintiff’s death, in addition to the general verdict. If the finding had been that the plaintiff was dead, such finding would have controlled the general verdict and suspended proceedings until an administrator or other representative of the plaintiff had been appointed. In the course of the oral argument in this court, it was asserted by respondents’ counsel, and admitted by counsel for the relator, that there was no evidence submitted to the jury upon the question of the death of plaintiff. That circumstance cannot affect the conclusion. The verdict disposed of the issue, and the same consequence must flow from an abandonment of it as would flow from any other. In this connection it is to be noted that the contention of the defendants is, not that the plaintiff has died since the answer was put in; on the contrary, it is merely an attempt to revive an issue which was disposed of by the verdict, or abandoned at the trial.
Eullebton, Dunbab, Beavis and Andebs, JJ., concur..