Hatry v. Shuman

• Citation: 13 Mo. 547
• Parties: JOSEPH HATRY v. EDWARD SHUMAN.
• Decision Date: 31 October 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 547

JOSEPH HATRY

v.EDWARD SHUMAN.

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

Edward Shuman brought suit by petition in debt, in the St. Louis Court of Common Pleas, against Joseph Hatry, and sued out an attachment thereon. At the return term, and within the first three days of the term, the defendant filed a plea in abatement, and also, but afterwards, and on the same day, filed a plea to the merits. The plaintiff moved to strike out the plea in abatement, for the reason that the defendant had pleaded to the merits of the action. While said motion was pending, the defendant asked leave to withdraw from the files his plea to the merits, but the court refused to grant him such leave, and, sustaining the plaintiff's motion, struck out the plea in abatement, and afterwards rendered judgment against the defendant for the amount of the plaintiff's demand. The defendant now appeals from the judgment of the court refusing him leave to withdraw his plea to the merits, and striking out his plea in abatement.

HAREN & BAY, for Appellant. 1. The court erred in striking out the plea in the nature of a plea in abatement. The statute gives the defendant the right to contest in his own manner the truth of the plaintiff's affidavit, and the court had no discretion in allowing or refusing the plea. Rev. Stat. of 1845, title Attachment, 139, 140. 2. The filing of the plea to the merits was merely to prevent a judgment by default in case the issue on the plea, in the nature of the plea in abatement, was decided against the defendant. The 8th section of the 3rd article of the act concerning Practice at Law, Rev. Stat., p. 810, requires that “every plea to the merits of the action shall be filed on or before the sixth day of the term.” 3. Even if the court had a discretion in striking out the plea, it was improperly exercised, and did great injustice to the defendant, for the plea to the merits, pending the plea in abatement, was at most a mere irregularity. Leave to withdraw a plea to the merits is generally granted as a matter of course. At least, the court should have permitted the defendant to elect by which plea he would abide. 1 Johns. Ca. 105, Le Comte v. Pendleton; 1 Dunlap's Pr. 471.

BLENNERHASSETT & SIMMONS, for Appellee. 1st. The statutory plea to the affidavit in an attachment suit is, in its legal construction, a plea in abatement of the attachment writ, for matter dehors the record, and like any other debatable plea is waived by a subsequent plea to the merits of the action. 3 Stewart's R. 489, Cleveland v. Chandler; 10 Mo. R. 274. 2nd. There is no force in the second point made by the appellant. If his plea to the affidavit had failed on trial, he could still have plead to the merits of his cause. It is the invariable practice in the St. Louis courts to grant this privilege in all similar cases, and the appellant would also have been entitled to it upon general principles. 3rd. The Court of Common Pleas committed no error in refusing the appellant leave to withdraw his plea to the merits of the action. The evident object of the appellant was to let in his plea in abatement, which the court very properly at the time would not permit. 3 Caine's Ca. 102. The motion for that purpose was merely a verbal one, and no reason was assigned in support of it. It was not made until a month after the plea was...