Witt v. Ellis

• Decision Date: 30 September 1865
• Citation: 42 Tenn. 38
• Parties: J. C. WITT v. GUY ELLIS et als.
• Court: Tennessee Supreme Court

42 Tenn. 38

J. C. WITT

v.GUY ELLIS et als.

Supreme Court of Tennessee.

September Term, 1865.

FROM JEFFERSON.

This cause was heard by Chancellor SETH J. W. LUCKEY, at the June term 1861. There was a decree and appeal.

J. P. SWAN, for complainant.

R. M. BARTON, for respondent.

MILLIGAN, J., delivered the opinion of the court.

The questions presented in this record arise on the pleadings. The complainant, Witt, filed his bill in the chancery court at Dandridge, in August, 1859, and before answer or plea was filed, the parties, in September following, submitted the matters in controversy to arbitration. A submission bond was regularly executed, but without containing any provision that the award should be made the basis of the chancellor's decree. The arbitrators met, and in conformity to the stipulations of the bond, made their award, which was afterwards, December, 1859, returned into court, and made the decree of the court, and the bill dismissed. But on the special affidavit of the complainant, leave was given him to file an amended and supplemental bill, which, on demurrer, was also dismissed, and the decree confirmed the award, which had been suspended, revived and affirmed. From which the complainant appealed in error to this court. The cause was remanded, with leave to the defendants to plead, answer, or demur. On the 9th of January, 1861, defendants filed their plea, setting up the award of the arbitrators as a discontinuance or voluntary withdrawal of the cause from the court. On the same day, they filed an answer, in support of the plea. To the plea and answer, the complainant demurred, and set down, among other things not material to notice, as causes of demurrer,

1st. That the plea of the defendant was overruled by the answer.

2d. That it stands as, and is, in fact, a plea in abatement; and as such, comes too late.

The chancellor disallowed the demurrer and dismissed the bill, and there is an appeal to this court.

The plea in abatement, as it is called, is not technically so. Judge Story, in his Commentaries on Equity Pleading, sec. 354, says: “Abatement, in the sense of the common law, is an entire overthrow or destruction of the suit, so that it is quashed and ended. But in the sense of the courts of equity, an abatement signifies only a suspension of all proceedings in the suit, from the want of parties capable of proceeding therein. At common Law, a suit, when abated, is absolutely dead; but in equity, a suit, when abated, is merely in a state of suspended animation, and may be revived.”

This is a plea more properly in the nature of a plea in bar, and goes to the life of the bill. If sustained in every particular, it is a complete bar to the suit, and no answer is required to aid it. The answer covers the same ground that is covered by the plea, and is substantially in the same language. They cannot both stand together. The plea must give away, because it...