Culver v. Philadelphia, B. & W.R. Co

• Decision Date: 07 February 1918
• Citation: 102 A. 980,30 Del. 76
• Parties: CULVER et al. v. PHILADELPHIA, B. & W.R. CO
• Court: Delaware Superior Court

102 A. 980

30 Del. 76

CULVER et al. v. PHILADELPHIA, B. & W.R. CO

Superior Court of Delaware, Sussex

February 7, 1918

Daniel J. Layton, Jr., and James M. Tunnell, both of Georgetown, for plaintiffs.

Frank M. Jones, of Georgetown, for defendant.

Argued before BOYCE and CONRAD, JJ.

OPINION

BOYCE, J.

The law has settled the order of pleadings. This order should generally be pursued. A demurrer to the declaration should not precede a plea in abatement. After a plea in bar to the action, or after a demurrer to the declaration and judgment by the court on the demurrer, a plea in abatement comes too late, except, it may be, by leave of the court, for matter arising after the commencement of the action, or for matter without the knowledge of the defendant, at the time of pleading in bar, or demurring to the declaration, as in the case of Kirwan Mfg. Co. v. Truxton, 2 Pennewill, 48, 44 A. 427.

A plea in bar or a demurrer generally admits that there is no foundation for a plea in abatement. Besides the identity of the defendant in this case is clear.

The motion to strike out the plea in abatement is allowed.