American Insurance v. Waycaster , 60 Ga. App. 430 ( 1939 )

Broyles, C. J.

It is well settled that issues of fact raised by a plea in abatement should be submitted to a jury. In the instant case (a suit on a policy of fire insurance) the defendant filed its plea in abatement, and introduced evidence to support the plea. The plaintiff moved that the court direct a verdict against the plea. The court orally announced that the motion was denied, and that he would sustain the plea. The plaintiff thereupon, and before any order was entered, requested to be allowed to introduce evidence to controvert the plea. The request was denied. Whereupon, counsel for the plaintiff stated to the court what he expected to prove by the plaintiff, if allowed to do so, and the court refused to permit the introduction of the evidence and passed an order sustaining the plea and dismissing the action. On the hearing of the certiorari obtained by the plaintiff, the judge of the superior court held that the trial court erred in not allowing both parties to submit competent and material evidence on the issues raised by the plea in abatement, and sustained the certiorari. This court can not say, as a matter of law, that the evidence offered by the plaintiff was not competent and material.

Judgment affirmed.

MacIntyre and GueiTy, JJ., concur.