Brink v. Reid

• Decision Date: 21 February 1890
• Citation: 23 N.E. 770,122 Ind. 257
• Parties: Brink et al. v. Reid.
• Court: Indiana Supreme Court

122 Ind. 257

23 N.E. 770

Brink et al.

v.Reid.

Supreme Court of Indiana.

Feb. 21, 1890.

Appeal from circuit court, Marshall county; Isaiah Conner, Judge.

McLaren & Martindale, for appellants. Samuel Parker, for appellee.

Elliott, J.

The appellants declared on a promissory note executed by the appellee and George W. Johnson. The appellee's answer, as originally filed, professed to be in bar of the action, and one of the paragraphs was the general denial. This answer was withdrawn, and two of the paragraphs were verified, and filed as pleas in abatement. They were filed after the change, over appellant's objection, as pleas in abatement, and they unsuccessfully moved the court to reject them.

Our statute, in very clear terms, provides that pleas in abatement shall precede pleas in bar. Rev. St. § 365. Its language is mandatory, for the provision reads: “An answer in abatement must precede, and cannot be pleaded with, an answer in bar;” and this direct command cannot be disregarded. In the face of this positive statute, the trial court had no right to permit the defendant to plead in abatement after he had answered in bar. A party who pleads matter in abatement must plead it in accordance with the statutory command. If he disobeys it, his plea should be rejected, on motion. State v. Ruhlman, 111 Ind. 17, 11 N. E. Rep. 793; Glidden v. Henry, 104 Ind. 278, 1 N. E. Rep. 369; Field v. Malone, 102 Ind. 251, 1 N. E. Rep. 507. The appellee must abide by the theory upon which he proceeded in the court below, for he cannot shift his ground. Carver v. Carver, 97 Ind. 497-516; Railroad Co. v. Wood, 113 Ind. 544-564, 14 N. E. Rep. 572, 16 N. E. Rep. 197. As the theory upon which he proceeded in that court was that his answers are in abatement, we must, for the purposes of the motion, so treat them; and, thus treating them, we must hold that the trial court erred in overruling appellant's motion to reject them. The answers are really in bar, and not in abatement; for they plead that the appellee was a surety, and that the payees of the note extended the time of payment for one month in consideration of the payment to them of one month's interest in advance by the appellee's principal. The decision in Glidden v. Henry, supra, does not apply to a case like this, where the surety asserts a release upon the ground that the creditor has extended the time of payment. We are not required to determine the sufficiency of the answers considered as pleas in bar, for we can only take...