M'Guire v. Peck , 14 La. 187 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The defendant and appellant has placed his case before us, on a bill of exceptions to the opinion of the court, in ordering the part of his answer which relates to the amicable demand and the pre-maturity of the suit to be stricken out, on the ground that the exception was a dilatory one, and could not be pleaded in an answer to the merits, or after a judgment by default.

The record does not show that any judgment by default had been taken, and it appears that the exception was taken in nm{ne Ufa being placed in the beginning of his answer.

... , , . . . . The court, m our opinion, erred in ordering this part or the answer to be stricken out.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that the parts of the answer stricken out be reinstated, and the case remanded for further proceedings, according to law; the plaintiff and appellee paying the costs of the appeal.