Langford v. King Lumber & Manufacturing Co.

Per Curiam.

The Court being in disagreement as to the disposition of this case on rehearing in so far as the propriety of the judgment of the Circuit Court on the third and fourth counts of the declaration, when considered in relation to the particular pleas to those counts, is concerned, it is ordered that a reargument of this cause be had on the following questions:

(1) Whether a judgment of nil cepit as distinguished from in abatement predicated on a plea of non joinder of proper parties plaintiff can be sustained as a matter of law on the third and fourth counts under the pleadings as-framed ?

(2) Whether or not the only appropriate judgment that can be rendered by the appellate court is to affirm the judgment as to the common counts but to reverse it as to the third and fourth counts with a direction for re-trial of the issues under those counts, subject to the privilege of defendant to file such valid amended or additional pleas to said counts as may be deemed necessary to conserve the defendant’s defenses, if any, to the cause of action laid on the third and fourth counts ?

New briefs confined to the above propositions will be received if filed within ten days, with five days thereafter allowed for reply.

Ellis, C. J., and Whitfield, Teeeell, Bufoed, Brown, Davis, J. J., concur.