Jones v. Baker, 8 Div. 658.

• Citation: 41 So.2d 191,34 Ala.App. 108
• Decision Date: 03 August 1948
• Docket Number: 8 Div. 658.
• Parties: JONES v. BAKER et al.
• Court: Alabama Court of Appeals

41 So.2d 191

34 Ala.App. 108

JONES v. BAKER et al.

8 Div. 658.

Alabama Court of Appeals

August 3, 1948

Rehearing Denied Oct. 5, 1948.

S A. Lynne, of Decatur, for appellant.

Ben L. Britnell, of Decatur, for appellees.

HARWOOD Judge.

The appellant brought suit against the appellees claiming $458.54 for logs sold by appellant to the appellees during the year 1947.

The appellant sued out an attachment in aid of the pending suit the affidavit made in connection with such attachment setting forth that the defendants had fraudulently disposed of their property, or were about to do so.

Thereafter on June 3, 1947, the defendant filed the following plea:

'Comes the defendants, separately and severally, and appearing specially for the purpose of filing this plea in abatement to the attachment heretofore issued out of this court on or about May 6, 1947, and for ground of said plea assign the following, separately and severally:

'1. The grounds for the issuance of said attachment, set forth in plaintiff's affidavit, are untrue.

'2. Defendants deny that they are indebted to said plaintiff in any amount.

'3. Said defendants deny that plaintiff has a lien against any of their property for the debt sued on.

'4. The name of the partnership firm is improperly stated.'

On October 27, 1947 the appellant moved to strike ground 1 of the plea because same, being in abatement, was waived by filing grounds 2, 3, and 4, respectively.

The court overruled the motion to strike, and plaintiff duly reserved an exception.

Immediately thereafter, on October 27, by leave of the court first had and obtained, the appellee filed an amended plea in abatement, the effect of which was to strike ground 2 of the original plea.

Appellant again moved to strike ground 1 of the plea as amended on substantially the same grounds. The court denied this second motion to strike and appellant duly reserved an exception.

A plea to the merits has been filed and is still pending.

The issues raised by the plea in abatement as to the existence of the grounds of attachment set forth in appellant's affidavit in support of the issuance of the attachment, that is whether appellee had, or was about to, fraudulently dispose of his property were presented to a jury on October 27, 1947. Under the court's instructions the issues were limited to this point.

In this proceeding the jury found in favor of the appellees, and the court, pursuant to such verdict entered a judgment dissolving the attachment.

This appeal is from said verdict and judgment.

In the original plea, labeled a plea in abatement, ground 2 is clearly a plea in bar.

A plea in abatement and a plea in bar cannot be pleaded together. Ordinarily, where a plea in abatement has been filed, and a plea in bar is filed before the plea in abatement is disposed of, the plea in abatement is waived. Rhode Island Ins. Co. of Providence, R. I., v. Holley, 226 Ala. 320, 146 So. 817; Bates v. Bank of Moulton, 226 Ala. 679, 148 So. 150.

Appellant strenuously argues that the lower court's action in permitting the appellee to amend his plea in abatement by striking out ground 2, which ground sets up matters in bar, constitutes a reversible error.

If by demurrer, or a general appearance a cause is left to stand until a plaintiff is prejudiced, such as by the running of the statute, or by the plaintiff acting upon the waiver, then by filing such pleading, a defendant irrevocably loses his right to file a plea in abatement upon such prejudicial effect becoming operative. Laseter v. C. I. T. Corporation, 228 Ala. 19, 152 So. 607; Hawkins v. Armour Packing Co., 105 Ala. 545, 17 So. 16.

However it appears that if the plaintiff will not be prejudiced, then it is in the court's discretion to permit a...