Jones v. Rowley

Decision Date22 March 1896
Docket Number664.
CourtU.S. District Court — Southern District of California
PartiesJONES v. ROWLEY.

Tanner & Taft, for plaintiff.

Thos R. Owen, for defendant.

WELLBORN District Judge.

This action is brought to recover possession of certain real estate described in the complaint, and the sum of $1,000 damages alleged to have been sustained by the plaintiff through the act of the defendant in withholding possession of said land, and the further sum of $500, rents, issues, and profits of said property. The complaint alleges that the matter in controversy exceeds the sum of $2,000. Defendant has filed what he calls a 'plea in abatement,' in which it is alleged, that 'the matter in controversy in this action does not exceed the value of two thousand dollars'; that, of the land sued for, defendant is in possession of only 50 acres, whose value does not exceed $10 per acre; and that he disclaims all right, title, or interest to or in the balance of said land; and that the damages for withholding possession of said land, and the rents, issues and profits thereof, do not exceed the sum of $1. Plaintiff moves to strike out said plea, on the ground that the same is not authorized by law, and also moves for judgment on the pleadings, on the ground that said plea presents no issuable fact, and the time for answer has expired. These two motions will be considered in the order in which they have been stated.

1. Plaintiff's argument in support of his motion to strike out is that by section 422, Code Civ. Proc. Cal., made applicable, by section 914, Rev. St. U.S., to the federal courts in this district, a plea in abatement is not authorized, but that the matters which, at common law, would be thus properly presented, must, under said section, be set forth by way of answer. This contention, I think, is untenable. That a defendant may plead to the jurisdiction of the court does not admit of question; and the fact that he calls his pleading 'a plea in abatement,' instead of an answer, as, perhaps, strictly speaking, would be the appropriate designation, under the state practice of California, is no ground for striking out the pleading. Where objections are offered to the jurisdiction of the court, the better practice, for obvious reasons, is to determine such objections before the trial upon the merits, although, since the act of congress approved June 1, 1872 (17 Stat. 197), carried into the Revised Statutes as section 914, conforming the rules of pleading, etc., in actions at common law, in the courts of the United States, to those prevailing in the courts of the several states, objections to the jurisdiction of the court and matters in defense of the cause of action may be united in the same answer. Roberts v. Lewis, 114 U.S. 653-658, 12 Sup.Ct. 781. In that case, the court, among other things, says:

'Doubtless, so long as the rules of pleading in the courts of the United States remained as at common law, the requisite citizenship of the parties, if duly alleged or apparent in the declaration, could not be denied by the defendant, except by plea in abatement, and was admitted by pleading to the merits of the action. Sheppard v. Graves, 14 How. 565. But since 1872, when congress assimilated the rules of pleading, practice, and forms and modes of procedure in actions at law in the courts of the United States to those prevailing in the courts of the several states, all defenses were open to a defendant in the circuit court of the United States, under any form of plea, answer, or demurrer, which would have been open to him under like pleading in the courts of the state within which the circuit court is held. Act June 1, 1872, c. 255, Sec. 5 (17 Stat. 197)' Rev. St. Sec. 914; Bank v. Lowery, 93 U.S. 72; Glenn v. Sumner, 132 U.S. 152, 10 Sup.Ct. 41; Central Transp. Co. v. Pullman Palace Car Co., 139 U.S. 24, 39, 40, 11 Sup.Ct. 478.'

The court then proceeds to hold that, according to the Code of Nebraska, diverse citizenship of the parties may be put in issue by a general denial. Such I understand to be also the rule under the California practice. The case of Sheppard v. Graves, 14 How. 505, lengthily quoted from by the defendant, was decided...

To continue reading

Request your trial
2 cases
  • Lanyon v. Chesney
    • United States
    • Missouri Supreme Court
    • February 21, 1905
    ... ... Chandler, 59 Cal. 541; Martin ... v. Porter, 84 Cal. 476; Royal v. Landis, 119 ... Ind. 479; Willis v. Holmes, 28 Ore. 265; Jones ... v. Rowley, 73 F. 286. (3) An answer which in any part ... contains a distinct denial of a fact material to the ... plaintiff's recovery ... ...
  • Hein v. Westinghouse Air Brake Co.
    • United States
    • U.S. District Court — Northern District of Illinois
    • August 26, 1909
    ... ... defendant's pleadings admit the cause of action, and no ... assessment of damages is necessary. Jones v. Rowley ... (C.C.) 73 F. 286; 11 Encyc. Pl. & Pr. 1030. By the ... course of pleading plaintiff's cause of action is ... admitted or confessed ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT