M'Cutchen v. M'Cutchen , 8 Port. 151 ( 1838 )

ORMOND, J.

— The first assignment of error rests for support on the twelfth Rule of Practice, which is, that “ No plea in abatement shall be received, if objected to, unless by the endorsement of the clerk, it appear to have been filed within the time allowed for pleading.” It does not appear from the record, that any objection was made by the plaintiff to the filing of this plea: we can not therefore presume that such was the fact. To permit the objection to be made here, when it was not made in the court below, would be productive frequently of great injustice, as the pleadings, if entitled at all, are generally entitled of the proper term. The record would not itself disclose the true time of filing the plea, and if it did, it might be that the delay was caused by the plaintiff himself. In this case, it appears that an office judgment for failing to plead, was set aside, and leave given the plaintiffs to file their declaration, and to the defendant to file her plea. In every view that we can take, there is great propriety in. requiring'the objection to the filing of the plea, to be made in the court below. The demurrer merely questions the legal sufficiency of the plea — not the time of filing it. This was so determined by this court, in the case of Callison vs. Lemons, (2 Porter’s R. 145.)

But the plea itself is clearly bad. The right of the plaintiffs to the possession of the personal property of their intestate, is not impaired by an injunction, forbidding its distribution. It is both their right and their duty, to take the necessary steps to have the property of their intestate in a condition for distribution, when the proper time arrives ; or to answer any other exigency which the law might cast on them, as the representatives of the deceased.

In the case of McGowen and wife vs. Young, (2 Stew’t, 276,) an action of trover had been commenced for the conversion of four slaves. On the trial, the defendant offered in evidence the record and proceedings in a chancery suit, by which it appeared, that the plaintiff had been enjbined from removing the property in question, out of the State. But the court held that this did not bar the action, although the residuary interest was in the defendant. So, in this case, the injunction forbidding distribution of the slave in question, did not at all interfere with the right of the plaintiffs to the possession of the slave, as the representatives of their intestate. What would have been the result, if the injunction had been, that no suit'should he instituted by the plaintiffs at law, to recover the possession of the slave, it is not necessary now to determine. It is sufficient that the present bears no analogy to such a case. The court below, therefore, erred in not sustaining the plaintiffs demurrer to the defendant’s plea.

The third assignment of error is not well taken. The judgment for the defendant on a plea in abatement, whether it be an issue in fact or in law, is, that the writ or bill be quashed: there was therefore no error in not awarding a respondeas ouster. But for the error pointed out, the judgment must be reversed, and the cause remanded.