Rees v. Augustine

• Citation: 24 Mo.App. 671
• Parties: MORRIS D. REES, Appellant, v. LOUIS AUGUSTINE, Respondent.
• Decision Date: 23 February 1887
• Court: Missouri Court of Appeals

24 Mo.App. 671

MORRIS D. REES, Appellant,

v.LOUIS AUGUSTINE, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1887.

APPEAL from the Franklin County Circuit Court, A. J. SEAY, Judge.

Affirmed.

J. C. KISKADDON, for the appellant: A plea to the merits is a waiver of the plea in abatement. Cannon v. McManus, 17 Mo. 345; Haley v. Shuman, 13 Mo. 547; Green v. Craig, 47 Mo. 90; Fordyce v. Hathom, 57 Mo. 120. The plea filed was an answer, and a plea to the merits. In this state, even before a general denial was authorized by the code, and a special denial, if any, required, it was held that to an allegation of indebtedness a simple denial was an answer. Westlake v. Moore, 19 Mo. 556; Simmons v. Sisson, 26 N. Y. 264; Hill v. Smith, 27 Cal. 476, 479; Schemmerhorn v. Van Allen, 18 Barb. 29; Andrews v. Bond, 16 Barb. 633.

WM. L. BEYERSDORFF, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff commenced his suit by attachment, for the breach of a contract whereby the defendant had agreed to purchase and pay for three mules. The defendant's first pleading commenced thus:

“And now comes the defendant and moves the court to abate the attachment and proceedings herein. And the defendant, Louis Augustine, being duly sworn, upon his oath, says that the plaintiff herein has not a just demand against the defendant now due, and that the plaintiff is not entitled to recover, after allowing all just credits and off-sets, the sum of $429.62, or any other sum, as stated in the amended affidavit and swearing of the plaintiff, and defendant further on his oath says,” etc.

Then followed a specific denial of each of the alleged grounds of attachment in the plaintiff's affidavit. The bill of exceptions recites:

“The said cause came on to be tried before a jury, and the said jury being sworn, the plaintiff offered to prove the allegations of his petition, to which the defendant objected, on the ground that the issues to be tried were on the amended affidavit for an attachment and the plea in abatement thereto, and the plaintiff insisted that the plea in abatement was substantially a denial of the plaintiff's cause of action stated in his petition, and that by said denial the defendant had waived his right to plead in abatement, but the court sustained the defendant's objection and overruled the plaintiff's offer to introduce said evidence, to which ruling of the court the plaintiff at the time excepted.”

The defendant, then, upon leave given by the court, filed an amended plea in abatement, omitting the averments about the plaintiff's demand, etc., contained in his first pleading, and denying in customary form the facts alleged as grounds for the attachment. The plaintiff moved to strike out this amended plea, because the defendant had waived his plea in abatement by answering to the merits. The court denied this motion, where-upon the plaintiff took a non-suit with leave, etc., and his motion to set aside the non-suit was afterwards overruled.

Counsel for the plaintiff here insists that the defendant's allegation, “that the plaintiff herein has not a just demand against the defendant now due, and that the plaintiff is not entitled to recover, after allowing all just credits and off-sets, the sum of $429.62, or any other sum,” is substantially a general denial of the plaintiff's cause of action, and is, therefore, an answer to the petition on the merits of the action.

There is not a shadow of support for such a position, in either reason or authority. The form and language of the plea show, from beginning to ending, that the pleader's purpose was...