Furbish v. Robertson , 1877 Me. LEXIS 5 ( 1877 )

Virgin, J.

The object sought by a dilatory plea, is the defeat of the particular action upon some technical ground foreign to, and regardless of the real merits of the case. Hence the marked disfavor with which pleas in abatement have always been regarded, as witnessed by the degree of certainty and precision in matter of form as well as of substance demanded in such pleas. The rule requires the pleader to “anticipate and exclude all such supposable matter, as, if alleged on the other side, would defeat the plea.” Gould’s Plead., e. 3, § 57. Tweed v. Libbey, 37 Maine, 49. The plea and the writ cannot both be good. When matter in abatement is seasonably and well pleaded, the action must necessarily abate ; but when the allegations in the plea may all be true, and still the action stand, the plea must be bad.

Judged by this rule, the plea in the casé at bar must be adjudged to be fatally defective. For the law does not allow deceased persons to be impleaded, or non-resident defendants to be joined with those within the jurisdiction, though jointly interested. If, therefore, all the allegations in the plea be true, still the writ and declaration may be good by reason of the death or non-inhabitancy of Plummer, neither of which supposed facts has been denied by the plea.

The decision being based on a demurrer, the judgment cannot be entered until the term next after the decision is certified. R. 5., c. 82, § 19. State v. Peck, 60 Maine, 498.

The defendant alleged exceptions without asking leave to plead anew, and entered his action in the law court.' This has been considered a waiver of any right on his part to answer further; and the judgment must therefore be final against him. R. S., c. 77, § 22. State v. Inness, 53 Maine, 536, 541. At that term the plaintiff, on motion, can have a conditional judgment awarded, and the sum adjudged. Exceptions overruled.

Judgment to be final at the next term after decision certified.

Appleton, C. J., Dickerson, Barrows, Danforth and Libbey, JJ., concurred.