Poland v. Davis

Strout, J.

Writ of entry, entered at April term, 1904. Plea, general issue. Case tried at that term, resulting in verdict for demandant. Exceptions to ruling of presiding Justice sustained by the Law Court, and at the December term, 1904, case submitted to the presiding Justice with right of exceptions. The case was then continued from term to term till the April term, 1907, when defendants filed a plea puis darrein continuance that demandant pending the action had conveyed to a third party the demanded premises. To this plea plaintiff demurred. The presiding Justice overruled the demurrer, adjudged the plea good and ordered judgment for the plaintiff for his costs up to the time of filing said plea, and judgment for defendants’ costs after the filing thereof. To the overruling the demurrer the plaintiff excepted, and the defendants excepted to the ruling as to costs.

In pleas puis darrein continuance, after the cause has been continued, "great certainty was always required,” and it "was not sufficient to say generally that after the last continuance such a thing happened, but the day of the continuance must have been alleged where the matter of defence arose.” Chitty’s Pleading, Vol. 1, p. 660.

The omission to state in the plea the day of the last continuance is fatal. Cummings v. Smith, 50 Maine, 569; Jewett v. Jewett, 58 Maine, 234; Augusta v. Moulton, 75 Maine, 551; Field v. Cappers, 81 Maine, 36. In Howell v. Hayden, 40 Maine, 582, this question was not raised or decided.

The plea in this case does not state the day of the last continuance, and is therefore fatally defective. It is not necessary to consider other objections to the plea.

The plea waives all former pleading, and if on demurrer it is adjudged bad, the judgment goes in chief unless the court allows a repleader, on terms, which it may do as decided in Augusta v. Moulton, supra. This result renders the defendants’ exceptions unimportant, and they are overruled.

To avoid a possible injustice, a repleader will be awarded.

Plaintiff’s exceptions sustained. Demurrer sustained. Plea bad. Pepleader nunc pro tunc awarded on payment of costs since filing the plea.