Whelan v. Rio Grande Western Ry. Co.

• Decision Date: 25 October 1901
• Docket Number: 150.
• Citation: 111 F. 326
• Parties: WHELAN v. RIO GRANDE WESTERN RY. CO.
• Court: U.S. District Court — District of Montana

111 F. 326

WHELAN v. RIO GRANDE WESTERN RY. CO.

No. 150.

United States Circuit Court, D. Montana.

October 25, 1901

John T Casey, for plaintiff.

Robert Harkness and McBride & McBride, for defendant.

KNOWLES District Judge.

The plaintiff brought this action against the defendant to recover damages for the death of her son, alleging that the same was occasioned by the negligence of the defendant. She sets forth in her complaint that she is the mother of the said deceased and his sole heir at law. To the complaint defendant filed what is termed a plea in abatement, in words as follows:

'Now comes the above-named defendant, and not confessing or acknowledging all or any of the matters or things in said plaintiff's amended complaint contained to be true as therein set forth and alleged, for plea in abatement to said complaint denies that said Katie J. Whelan is the sole heir at law of James H. Whelan, deceased, but, on the contrary, alleges that William Whelan, father of said James H. Whelan, deceased, named in plaintiff's amended complaint on file herein, is now, and at all the times mentioned in plaintiff's amended complaint has been, a resident of the state of Colorado, and that the said William Whelan is equally and jointly interested with the plaintiff above named as heir at law of the said decedent in any alleged cause of action which the said plaintiff may have or claim to have against this defendant, and that the said William Whelan is a necessary party to the matters sought to be litigated herein; wherefore defendant pleads the said nonjoinder of the said William Whelan in this action in abatement hereof, and prays this court that this action be dismissed, and that defendant recover its costs herein expended.'

The plaintiff demurs to this plea in abatement, because:

'(1) That said plea in abatement does not state facts sufficient to constitute a defense to plaintiff's cause of action. (2) That said plea in abatement does not state facts sufficient to constitute a plea in abatement in said cause, or raise a material or relevant issue therein.'

The facts stated in the plea are sufficient. Under the statute law of both Utah and of Montana it is provided that if a person dies leaving no issue nor husband or wife his estate must go to his father and mother in equal shares. They are his heirs under these circumstances. The statutes of both Montana and Utah provided:

'When the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. ' Code Civ. Proc. Mont. Sec. 579; Rev. St. Utah, Sec. 2912.

The damages in this case accrued to the father and mother. The plea shows that the father is a resident of Colorado, and denies that plaintiff is the sole heir. It is urged that the plea is not sufficient, because pleas in abatement have been abolished in Montana under the Code of Civil Procedure, and that in actions at law, such as this, by virtue of an act of congress it is provided that the federal courts shall follow the practice which prevails in the states where such issue is tried. It is true that the statute of Montana provides that the pleadings on the part of the defendant shall be 'the demurrer to the complaint, the answer, the demurrer to the reply. ' In section 680 of said Code it is provided that the defendant may demur to a complaint on the ground 'that there is a defect or misjoinder of parties plaintiff or defendant'; and in section 684 of said Code it is provided that, where this defect does not appear upon the face of the complaint, the objection may be taken by answer. Now, what is termed above a plea in abatement may be considered an answer. In many decisions the old name is still applied to that portion of an answer which performs the office of a plea in abatement. This is frequently done in the courts of California. In the following cases it is so used: Primm v. Gray, 10 Cal. 522; White v. Moses, 11 Cal. 68; Leonard v. Flynn, 89 Cal. 535, 20 P. 1099. Rule 10 of this court provides:

'All matters in abatement shall be set up in a separate preliminary answer in the nature of a plea in abatement, to which the plaintiff may reply or demur; and the issue so joined shall be determined by the court before matters in bar are pleaded.'

It is then provided, if such matter is coupled with matters in bar or to the merits, the matter pleaded in abatement should be waived. This rule is similar to one that was enacted by the circuit court of California. In the case of Bank v. Hamor, 1 C.C.A. 153, 49 F. 45, this question was presented to the circuit court of appeals of this circuit. In its opinion the court said:

'This defect (the nonjoinder of Kuntz) did not appear on the face of the complaint, and the case is provided for in section 191 (HillS Code 1887), which reads: 'When any of the matters mentioned in section 189 do not appear upon the face of the complaint, the objection may be taken by answer.' This answer is a substitute for the common-law plea in abatement, and only differs from it in name.'

Under the rules that prevail in interpreting under the Code, the court does not look to the name given to any pleading, but to the facts set forth therein. Pom. Rem. & Rem. Rights, Secs 71-80. Considering the pleading as an answer, it distinctly raises an issue upon the allegation that the plaintiff is the sole heir of the deceased, and sets forth that William Whelan, the...