O'Loughlin v. Bird

• Decision Date: 30 June 1880
• Parties: Patrick O'Loughlin v. Frank W. Bird
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 600

Patrick O'Loughlin v. Frank W. Bird

Supreme Court of Massachusetts

June 30, 1880

Suffolk. Replevin of goods alleged to be $ 100 in value, and appearing by the appraisers' certificate to be $ 22 in value. Writ dated October 14, 1879, returnable to the Municipal Court of Boston.

On the third day after the entry of the action in that court, the defendant filed the following answer: "And the defendant comes and says that his name is Francis W. Bird, and not Frank W. Bird, and therefore he ought not to be held to answer to the plaintiff's writ; and further answering says that the actual value of the whole property described in the plaintiff's writ, at the suing out thereof, did not exceed $ 20, and that the appraisal of said property at $ 22 was procured by the fraud and collusion of the plaintiff and the constable who served the writ, and therefore he ought not to be held to answer to the plaintiff's writ.

"And still further answering, the defendant says that he denies each and every allegation contained in the plaintiff's writ and declaration, and alleges that the property replevied belonged to the defendant, and not to the plaintiff, at the time the plaintiff sued out the writ aforesaid."

The record of that court showed that issue was joined on the answer in abatement, and found for the plaintiff, and judgment rendered for him for one cent damages and costs, and the defendant appealed to the Superior Court.

Upon the entry of the action in the Superior Court, the defendant filed this answer: "And now comes the defendant and denies each and every allegation contained in the plaintiff's writ and declaration;" and claimed a trial by jury as follows: "And now comes the defendant and claims a jury trial in the above entitled cause." The plaintiff moved that judgment be entered for him. The court allowed this motion, and entered judgment for the plaintiff for one cent damages and costs. The defendant appealed to this court.

Judgment for the plaintiff set aside.

Willard Howland, for the plaintiff.

P. H Hutchinson, for the defendant.

Gray C J. Ames & Lord, JJ., absent.

OPINION

Gray C. J.

If a defendant pleads in abatement of the writ, and to the merits of the action, in the proper order, the fact that both pleas are filed at the same time, and even upon the same paper, does not, in this Commonwealth, operate as a waiver of the plea in abatement, if seasonably filed. This mode of pleading is often convenient to both parties; to the defendant by stating, and to the plaintiff by giving him notice of, all the defences on which the defendant intends successively to rely, if the trial and judgment upon the first shall not dispose of the whole case; and it is sanctioned by a usage of more than a century. Province v. Paxton, Quincy, 548. Fletcher v. Vassal, 5 Dane Ab. 691, 710. Fisher v. Fraprie, 125 Mass. 472. The remarks in Pratt v. Sanger, 4 Gray 84, 88, in Morton v. Sweetser, 12 Allen 134, 137, and in Machinists' Bank v. Dean, 124 Mass. 81, 83, so far as they tend to discountenance it, are obiter dicta, and are unsupported by the authorities there referred to.

In Pratt v. Sanger, and in Machinists' Bank v. Dean, the plea in abatement was filed too late. Campbell v. Stiles, 9 Mass. 217, and Coffin v. Jones, 5 Pick. 61, decided no more than that a plea of abatement could not be filed after an imparlance. In Simonds v. Parker, 1 Met. 508, the decision was that a motion to quash a writ, or to dismiss an action, like a plea in abatement, could not be filed after the first term, nor after a plea in bar; and in Kittridge v. Bancroft, reported with it, the only further decision as to a plea in abatement was, that when a fact, not appearing on the record, had been pleaded in abatement, and a replication to that plea filed, traversing the fact, but no issue had been joined, and no notice taken of that plea in the record, it must be understood to have been abandoned.

In Morton v. Sweetser, the answer began by stating defences on the merits, and ended with setting up matter of abatement so that the defendant had, in the phrase of Lord Coke, "misordered" his pleas, and thereby lost the benefit of his plea in abatement. Co. Lit. 303 a. The statement in Com. Dig. Abatement I. 23, is only that, "after a plea to the action, the defendant shall not plead in...