Little v. Harrington
| Decision Date | 30 April 1880 |
| Citation | 71 Mo. 390 |
| Parties | LITTLE v. HARRINGTON et at., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Lawrence Circuit Court.--HON. JOSEPH CRAVENS, Judge.
REVERSED.
Ewing & Hough and G. H. Walser for appellants.
E. Buller and Jere Cravens for respondent.
Winkle, who, on plaintiff's theory, was a joint owner with him of the goods for the conversion of which this suit is brought, should have been joined as co-plaintiff. 1 Chitty's Plead., 75; Whittelsey's Mo. Prac., 113; 1 Nash Plead. & Prac., 43, 45; R. S. 1879, § 3466.
Under our code, as the plaintiff sued as the sole owner of the goods, and as the objection could not be taken by demurrer, it only remained for the defendants to interpose such objections by answer; this they did, and in this it is quite clear from the authorities cited that they should have been successful and the plaintiff should have been compelled to amend before proceeding further with his suit; and it was competent for the defendants, in connection with other matters in the same answer, to plead the non-joinder of Winkle as co-plaintiff. The statute expressly says that “the only pleading on the part of the defendant, is either a demurrer or an answer.” 2 Wag. Stat., p. 1014, § 4. And with the same degree of explicitness, it is provided that “the defendant may set forth by answer as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.” Ib., 1016, § 13. It is evident from these statutory provisions, that only one answer is contemplated, and this to contain whatever defense or defenses the defendant may have, thus dispensing with the common law rule that a plea in bar waives all dilatory pleas, or pleas not going to the merits. Upon this point Judge Bliss, in his recent work, very justly and pertinently observes: “Matter in abatement is as much a defense to the pending action as matter in bar, and to say that the defendant may reserve the latter until a trial shall have been had upon the issues, in regard to the former, would interpolate what is not in the statute; would be inconsistent with its plain and simple requirements.” Bliss Code Plead., § 345. A different view of this subject was at first taken in New York, from the code of which our own is derived, but subsequent adjudications have overruled former ones, and...
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Markey v. Louisiana & M. R. R. Co.
...v. Bast, 41 Mo. 493; Graham v. Ringo, 67 Mo. 324. Answering over and appearance at trial do not waive exception to jurisdiction. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Fare v. Gunter, 82 Mo. 522; Brackett v. Brackett, 61 Mo. 222; Christian v. Williams, 111 Mo. 430, 20......
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Mertens v. McMahon
...to unite in the same answer matter in abatement and matter in bar." [Christian v. Williams, 111 Mo. 429, 443, 20 S.W. 96; Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261.] In Roberts v. American Nat. Assur. Co., 201 Mo. App. 239, 243, 212 S.W. 390, the court said: "The fact tha......
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Newcomb v. New York Central And Hudson River R. Company
...steps to sustain both defenses, and that it went to trial on both defenses, does not constitute a waiver of either defense. Little v. Harrington, 71 Mo. 390; Higgins v. Beckwith, 102 Mo. 456; Kenner v. Doe Run Lead Co., 141 Mo. 248; Guy v. Mapes, 141 Mo. 441; Ziefle v. Seid, 137 Mo. 538; De......
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Mertens v. McMahon
...do such things as would, absent the previous objection, have amounted to a general appearance, without waiving the objection." Little v. Harrington, 71 Mo. 390, quot§ with approval from Bliss Code Pleading, 345, thus: "Matter in abatement is as much a defense to the pending action as matter......