Alexander v. School Dist. No. 6
| Decision Date | 28 May 1890 |
| Citation | 19 A. 995,62 Vt. 273 |
| Parties | M.H. ALEXANDER v. SCHOOL DISTRICT NO. 6 |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890
We find no error, but that the defendant may replead or go to trial on the general issue, the judgment is reversed pro forma and the cause remanded.
J J. Monahan, for the defendant.
The motion to dismiss is sought to be maintained on the ground that the plaintiff cannot recover as bearer on the order set out in the specifications, or bill of particulars because it is not negotiable. This ground is entirely untenable, and wholly misconceives the nature and scope of a motion to dismiss. Such a motion is in the nature of a plea in abatement, and is not used for testing the right of recovery on the merits, but only for impeaching the correctness of the proceedings for the purpose of abating the action. Defects apparent on the face of the declaration independent of any reference to the writ or its service, are not pleadable in abatement nor the subject of a motion to dismiss. The proper way of taking advantage of such defects is by demurrer or motion in arrest of judgment. Gould Pl 252, s. 64. When the matter pleaded goes in denial of the right of recovery in any action, it is in bar; but when it goes only to defeat the present action, and does not show that the plaintiff is forever barred, it is in abatement. 1 Chit. Pl. [*446]. We are now speaking generally without undertaking to note any exceptions, for that is unnecessary for present purposes.
There is another reason why the motion cannot be maintained. The defendant's counsel bases his argument in support of it upon the assumption that the specifications are a part of the declaration for the purpose of pleading, which is not so. Specifications are the creature of the court, and are not a part of the record for the purpose of subsequent pleading. Their object is to give the defendant more specific and precise information as to the character and extent of the plaintiff's claim than the declaration gives; and their effect is to limit the plaintiff's proof and keep it within them. Lapham v. Briggs, 27 Vt. 26; Anon. 19 Wend. 226, and note; Dibble v. Kempshall, 2 Hill 124; Blunt v. Cooke, 4 Man. & G. 458; Wright v. Dickson, 67 Mich. 580, 35 N.W. 164; 11 Am. St. Rep. 602.
The special plea commences in bar of further maintenance of the action, but concludes in bar generally, and the subject matter of it is not alleged to have arisen after suit brought. It is not, therefore, a plea to the further maintenance of the action, but in bar genera...
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