Fisher v. Fraprie

• Decision Date: 22 October 1878
• Citation: 125 Mass. 472
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mason Fisher & another v. Stephen T. Fraprie

125 Mass. 472

Mason Fisher & another v. Stephen T. Fraprie

Supreme Court of Massachusetts

October 22, 1878

Bristol. Contract on an account annexed for use and occupation. The defendant filed the following: "Answer in abatement and answer. And now comes Stephen T. Fraprie and answers in abatement the nonjoinder of Thomas Fairbanks, John Gifford, alias Gilfoy, James Cameron, Smith K. Law, William Greene and Joseph Eaton, all of Fall River in said county, who are jointly liable with the defendant in the cause of action declared on, and ought to be joined with him as parties defendant in said case, and this he is ready to prove; and, in no ways departing from his said answer in abatement, or waiving the same, the defendant says that he denies each and every allegation of the plaintiff's writ and declaration."

At the trial in the Superior Court, it appearing that the defendant, if liable at all, was liable with other persons, known to him, whose names were disclosed at the trial, but who were not named in the answer in abatement, Brigham, C. J., overruled the answer in abatement, and ordered the trial to proceed on the merits; and to this order the plaintiffs alleged exceptions, which, after trial on the merits and verdict for the defendant, upon contradictory evidence, and under instructions not otherwise excepted to, were allowed by the judge.

Exceptions overruled.

W. H. Peirce, for the plaintiffs.

H. K. Braley, for the defendant, was not called upon.

Endicott & Lord, JJ., absent.

OPINION

By the Court.

The answer filed by the defendant contained both an answer in abatement and an answer to the merits; and the validity of either was not affected by their being pleaded together. Claflin v. Thayer, 13 Gray 459. The decision in the Superior Court, whether in law or fact, upon the answer in abatement, was indeed final. Gen. Sts. c. 115, § 7. Wildes v. Marshall, 117 Mass. 311. But if the answer in abatement was overruled as matter of law, the defendant had the right to answer over; if as matter of fact, he might do so at the discretion of the judge. Gen. Sts. c. 129, § 40. Young v. Gilles, 113 Mass. 34. The plaintiff has therefore no just ground of exception to the order of the judge allowing a trial on the answer to the merits.

Exceptions overruled.