Copeland v. Hewett , 93 Me. 554 ( 1900 )

Haskell, J.

The defendants pleaded in abatement the nonjoinder of co-defendants. The plaintiff demurred, and to the sustaining of the demurrer the defendants had exception, and, before availing themselves of their right to plead over to the merits, have brought their exception here with the agreement that if their exception be overruled they may plead anew below.

The exception is prematurely brought up. R. S., c. 77, § 52. It is to an interlocutory order, and must await the final determination of the suit. Smith v. Hunt, 91 Maine, 572; State v. Brown, 75 Maine, 456; Cameron v. Tyler, 71 Maine, 27; Abbott v. Knowlton, 31 Maine, 77; Daggett v. Chase, 29 Maine, 356.

Pleas in abatement are collateral to the merits of the case, and the sustaining of a demurrer to them never ends the ease, but rather orders a plea to the merits. If, however, the demurrer be overruled and the plea sustained the action abates and exceptions may be brought up, for the ease is ended.

On demurrers to declarations and pleadings to the merits, the decision is a final disposition of the suit, unless amendments or repleaders be allowed by the court or by provisions of statute, in the furtherance of justice; and therefore such demurrers stay the cause, and exceptions may be entered here at once. If such exceptions be adjudged frivolous and intended for delay, no repleader will be allowed, but final judgment will be ordered. R. S., c. 82, § 23.

In the superior courts the rule is otherwise by reason of R. S., c. 77, § 76.

Semble, that the plea in abatement is fatally defective, because it fails to aver the residence of the supposed co-defendants to be in the state when the action was brought. Furbish v. Robertson, 67 Maine, 35; Biddeford Savings Bank v. Mosher, 79 Maine, 242; Bellamy v. Oliver, 65 Maine, 108.

Exceptions dismissed.