Jones v. Rowley
Decision Date | 22 March 1896 |
Docket Number | 664. |
Court | U.S. District Court — Southern District of California |
Parties | JONES v. ROWLEY. |
Tanner & Taft, for plaintiff.
Thos R. Owen, for defendant.
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:
. 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-
Lanyon v. Chesney
... ... 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.
... ... 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 ... ...