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Annotation: Forts of Pieading Necessary to Raise Issue of Corporate Thâstenee, 55 ALa. 510 (1928).
2. 3 Blackstonc, Commentaries on the Laws of Eng~ land, c. XX, Wrongs, 301 (7th ed. Oxford, 1775). Gould, describes such Pleas as such as tend to de~ lay the plaintiff’s eventual remedy. A Treatise on the Principles of Pleading, c. II, Dilatory Pleas, 29 (New York, 1892).
3. 1 Chitty, On Pleading, e. VI, Of Pleas to the Ju­risdiction, and in Abatement, and tho Proceedings Thereon, 441 (13th Am. ed Springfield, 1859).

203.


204.

2O~.


206.

207.


208.

209.


210.

211.


212.

213.


214.

410


Sec. 204

PLEAS—DILATORY

411


Dilatory Pleas, with which we are con­cerned in this Chapter, may be divided into Three Classes: first, Pleas to the Jurisdic­tion and Venue of the Court; second, Pleas in Suspension of the Action; and third, Pleas in Abatement. Dilatory Pleas have sometimes been referred to by the generic name of Pleas in Abatement, but this term is more prop­erly used to designate one of the classes into which Pleas of a Dilatory Nature are di­vided.
The general effect of these Dilatory Pleas is to suspend or terminate the particular Suit, but to leave the cause undetermined on its merits. And this was on the basis that there was an objection to the Action ground­ed on principles of Remedial Law as opposed to Substantive Law. And it was necessary that they be Pleaded before Pleas in Bar, which dispose of the Action entirely. Objec­tions to the Jurisdiction of the Court, the Service of Process, and the Venue, are more favorably regarded than Pleas in Abatement proper; they do not have to be Verified by Affidavit, nor give the plaintiff a better Writ, and they may be Amended like Pleas in Bar.4 A mistake in the Formal Prayer for Relief in a Plea in Abatement is fatal to the Plea.5
At Common Law, Pleas of every descrip­tion were required to follow a certain order.
4. SinithI-lurd’s Rev.St.Ill.1021, c. 1, § 1: Spencer v. Aetna Indemnity Co., 231 Ill. 82, 83 N.E. 102, 12 Ann.Cas. 323 (1907).
Though a Plea to the Jurisdictloa is not pruporly a Plea in Abatement, liko such a Plea, it should state what Court has Jurisdiction. .Minch & Eisenbrey Co. v. Cram, 138 Md. 122, 110 A. 204 (1920).
In an Action of Trover the defendant’s Plea to the Ju­risdiction on the ground that it was a foreign cor­poration without a place of business or agent in the state was not -within the reason discouraging Dila­tory Pleas, or one going merely to a Question of Venue within the State. Bank of Bristol v. Ash-worth, 122 Va. 170, 94 S.E. 469 (1917).
~. Pitts Sons Mfg. Co. v, Commercial Nat. Bank, 121 Ill. 582, 13 NE, 156 (1857).

Thus, Dilatory Pleas had to be Pleaded be­fore Pleas in Bar, and even as between the different Dilatory Pleas, a certain order was required. A Plea to the Jurisdiction of the Person must be taken before the de­fendant Demurs, Moves, or Offers any other Plea, or he will submit himself to the Juris­diction of the Court,

TILE ORDER OF DILATORY PLEAS
204. Dilatory Pleas must be Pleaded before any others. Matters of Defense, which tend only to delay or defeat the particular Suit, withàut destroying the plaintiff’s Right to Sue, must be presented Before Pleading to the Merits of the Action; the order of Pleading Dilatory

Objections is in general as followsl


(I) Pleas to the Jurisdiction;
(II) Pleas in Abatement on Account of the Disability of the Plaintiff;
(III) Pleas in Abatement on Account of the Disability of the Defendant;
(IV) Pleas in Abatement for Defect of Parties;
(1”) Pleas in Abatement for Pendency of Another Action.
THE Law has prescribed and settled the Order of Pleading which the defendant should pursue, and although, in some re­spects, the division has been objected to as more subtle than useful, the arrangement given above is still adhered to? as will be seen from the Chart set forth on page 412:
6. See the opinion of Chief Justice Bolt in Longue ville v. Inhabitants of Thlstleworth, 2 Ld.Raym. 969, 92 EngRep. 146 (1703); Co.Lltt. 303a (PhLladel­pIña, 1853).
This Rule can have no application in Code Pleading, as an defenses are to be covered by the answer, save

• the objections specified for the use of a Demurrer.


In Equity Pleading, however, the analogy is plain, and a logical sequence of Pleas and Answers ac­cording to their object is, to a certain extent, still maIntained.

412


DEFENSIVE PLEADINGS

Ch. 21

ORDER IN Wuicu Plaks MUST BE PLEADED

DILATORY PLEAS—

1. To the Jurisdiction of the Court

1 Of Plaintiff.
2, To the Disability of the Fersoa: {2: Of Defendant
3. To the Count or Decinration.

4. To the Writ:

(1. To the Form of the Writ:
2, To the Action of the Writ.

1.
0

For Matter Apparent

on the Face of it.


For Matter dertors the Writ.

PEREMPTORY PLEAS—To the Action itself, b-i Bar thereof.

STEPHEN, A Treatise on the Princi­ples of Pleading in Civil Actions, c. I, § 221, p. 420 (Ed. by Andrews, Chica­go, 1894).
The Order, as set out in the Chart above, has been said to be the Natural Order, since each Subsequent Plea admits that there is no foundation for the Preceding Plea, and precludes the defendant from afterwards availing himself of the Matter, as will be seen if the Order be inverted. A Plea to the Count or Declaration thus admits the Juris­diction of the Court, and the ability of the plaintiff to sue mid the defendant to besued; and, after a Plea in Bar to the Action, the defendant cannot Plead in Abatement, unless for New Matter arising after the Commence­ment of the Action.’
7. Corny; Dig. “Abatement”, C. 2, 3, 1, 23, 24 (Len-don, 1822); Massachusetts: Carlisle v. Weston, 21 Pick, (Mass.) 537, (1839); New York: Palmer v. Evertson, 2 Cow. (N.Y.) 417 (1828); Pennsylvania:

Potter v. McCoy, 2~ Pa. 458 (1856); Federal:

D’Wolt v. Rabaud, 1 Pet. 476, 7 LEd. 227 (1828);

Parmington v. PIllsbury, 114 U.S. 138, 5 Sup.Ct.

807, 29 LEd. 114 (1885).

Pleas In Abatement and In Bar cannot be f’teaded to­gether. Putnam Lumber Co. v. Ellis-Young Co., 50 Pta. 251, 80 So. 193 (1905).



PLEAS TO TIlE JURISDICTION
205. A Plea to the Jurisdiction is one by which the defendant excepts to the Authority and Power of the Court to entertain the Ac­tion, either for Lack of Jurisdiction of the Subject-Matter, or for Lack of Jurisdiction of the Person of the Defendant.
Definition and Classification

A Plea to the Jurisdiction asserts, by Way of Denial, that a Specific Court has no Ju­risdiction to try the Cause of Action present­ed by the plaintiff.


In this connection, it is important to keep in mind that Courts are either of General or of Limited Jurisdiction. The first Type of Courts have Cognizance over all Transitory Actions, wherever the Cause of Action may have accrued, as All Actions of that kind generally follow the person of the defendant. The latter have Jurisdiction only over Caus­es of Action arising within Certain Local Limits.8 Courts of General Jurisdiction have
8. No fact necessary to confer Jurisdiction upon these Inferior Courts will be presumed, but every­thing must appear upon the Record. Clark v. Nor­ton, 6 Minn. 412 ((311. 277) (1861). But see, Illinois:

Renney v. Oreer, 13111. 432,54 Am.Dec. 439 (1851);

Sec. 205

PLEAS—DILATORY

413

no authority to try cases of a Local Nature arising in a Foreign Country or in any place where the Process of the Court cannot run.


Pleas to the Jurisdiction of the Court were either one of Two Descriptions: first, that the person of the Party making the Plea was not subject to the Court’s Jurisdiction; sec­ond, that the Cause of Action was not subject to the Court’s Jurisdiction.8 These will now be discussed.
(I) Plea that the Court Has No Jurisdic­tion Over the Party Defendant.—Pleas of this character were limited in number, and frequently consisted in a right of the defend­ant to be exempted from liability to be sued in the Specific Court, as he was privileged to be exclusively sued in some other Court. The conclusion of such Pleas indicates that they should be Classed with Pleas to the Ju­risdiction, but some authorities have Classed them with Pleas in Abatement to the person of the defendantt° According to Martin, “Pleas challenging the right of the plaintiff to sue on account of any disability are not properly classed with Pleas to the Jurisdic­but more properly belong to a cer­tain Class of Pleas in Abatement yet to be considered.
(II) Plea that the Court Has No Jurisdic­tion Over the Subject-Matter of the Action.
Diblee v. Davison, 25 111, 480 (1860) Massachu­setts: Ainalle ‘cc Martin, 9 Mass. 462 (1813); New

Hampshire: Flanders v. Atkinson, 18 N.H. 167

(1846); Federal: Sheppard v. Graves, 14 How.

(U.S.) 505, 14 L.Ed. 518 (1852).


•. Martin, 01,11 Procedure at Common Law, c. X, Defences by Way of Dilatory Pleas, Art. II, Pleas to the Jurisdiction, * 245 Defined and Classified, 207 (St Paul, 1905).
°. Jacob, Dictionary, AMtement I (London, 1809). See, also, Hunter v. Neck, 3 31. & 0. 181, 133 Eng.Rep, 1107 (1841).
11. Civil Procedure at Common Law, c. X, Defences by Way of Dilatory Pleas, Art. II, Pleas to the 3m rlsdiction, * 245, Defined and Classified, 208 (St Paul, 1905).

—Pleas of this character were, according to Martin,13 three in number:


First, what may be determined privilege of tenure, under which fall Pleas of Ancient Demesne, a species of privileged tenure Cog­nimble only in the Court of the Manor of which the land sued for was held.13 This type of Plea has no application in the United States.
Second, Causes of Action arising out of the Local Limits of the Court’s Jurisdiction, as in Counties Palatine or other Inferior Courts of Local Jurisdiction.’4
Third, want of power in the Court to take Jurisdiction over the Subject-Matter of the Action. When the Nature of the Action is such that the Court is under no circumstanc­es competent to try, the objection may be, but need not necessarily be raised by a Plea to the Jurisdiction.15 If the Court is totally without power to take Cognizance of the Subject-Matter, the Cause may be dismissed on Motion, or without Motion, cx officio, for the whole proceeding would be coram non ju­dice [in presence of a person not a Judge] and utterly void.’6
Requirements of Pleas to the Jurisdiction

THE general Common-Law Rule was that

Pleas to the Jurisdiction were PJeaded in Person and not by an Attorney, In Mostyn

v. Fabrigas,17 it was held that such a Plea

12. IbId.



13. IbId.

14. mid.

15. ibid.



15. Illinois: Oakrnan v. Small, 282 Ill. 360, 118 N.E.

775 (1918); Pennsylvania: Black’s Ex’r v. Black’s Ex’rs, 34 Pa. 354 (1859).

Under the Civil Code of Georgia, 2010, ~ 5605, requir­ing Special Pleas to the Jurisdiction unless want of Jurisdiction appears on the Face of the Proceedings, “Want of Jurlsdiètion” refers to Subject-Matter, not to the person. Thurman v. Willingbam, 18 Ga.App. 895, 89 SE. 442 (1910).
12. 1 Cowp. 161, 98 Eng.Rep. 1021 (1774).

414


DEFENSIVE PLEADINGS

Ch. 21

should indicate another Jurisdiction in which the Action could be brought. Only Half De­fenses were required,’8 Formal Commence­ments were omitted,’° and such Pleas were concluded to the Cognizance of the Court by Praying Judgment, if the Court would take further Cognizance of the Action.2° Pleas to the Jurisdiction, except such as de­nied Jurisdiction over the Subject-Matter of the Action under any circumstances, were required to be Pleaded first in order, for if the Pleader raises any other question which the Court must of necessity pass upon, he admits the Jurisdiction, and cannot after­wards be heard to deny it.2’ This does not apply, of course, where the Court has No Ju­risdiction of the Subject-Matter. In such a ease, it cannot acquire Jurisdiction either by consent or waiver, and the objection of Want of Jurisdiction may be raised at any time.22 If the Action was brought in a Court of Limited Jurisdiction, every Fact essential to sustain the Jurisdiction had to be stated in the Declaration; it would not be aided by presumptions.23


13. 1 Chitty, On Pleading, e. VI, Of Pleas to tile Ju­risdiction, and in Abatement, and the Proceedings Thereon, 4-14 (13th Am. ed., Springfleld, 185W.
19. stephen, A Treatise on the Principles of Pleading in Civil Actions, e. 11, Of the Principal Rules of Pleading, 370 (.3rd ed. by Tyler, Washington, U. C. 1803).
20. Martin, Civil Procedure at Common Law, C. Defences by Way of Dilatory Pleas, Art. II, Pleas to the Jurisdiction, § 240 rleqtnreutcnts, 209 (St. Paul, 1005).
21. D’Wolf v. Itaband, 1 Pet. (U.8) 470, 7 LEd, 227 (1828): Farmington v. Pillsbury, 114 US, 138, 5 S. Ct. 807, 29 LEd. 114 (1885).
An Objection to the Venue on the Ground of the de­fendant’s privilege to be sued in his borne county is waived if not pleaded in Abatement. Ales v. flei­denreich, 271 III. 480, 111 N.E. 524 (1016); Cemmill

v. Smith, 274 IlL 87, 113 N.E. 27 (1910).


22. Brady v. Richardson, is Intl. 1 (1802).
The quesUon of jurisdiction of a City Court must be raised by a Plea. Buchanan v. Scottish Union & National Ins. Co., 210 l11.App. 523, (1918).
ZZ. I Saunders, The Law of Pleading & Evidence, in Civil Aetious, 1 (Philadelphia, 1837).

Methods of Taking Advantage of the Court’s Lack of Jurisdiction

WHERE the Action was brought in a Court of Limited Jurisdiction, if the Facts necessary to show Jurisdiction, did not ap­pear, such Defect could be reached by De­murrer. But the Rule was to the contrary in Courts of General Jurisdiction. In the lat­ter case, the Jurisdiction was presumed, un­less perchance the Declaration showed on its face that the Action arose in some Exclu­sive Jurisdiction, in which case a Demurrer was available. If, however, no Fact appear­ed in the Declaration which operated to re­but the Presumed Jurisdiction, the objection could be raised only by Plea, and such Plea, in order to measure up to the requirements of Good Pleading, was required to Negative Every Fact from which Jurisdiction might be presumed.24


Defects in the Service of Process, not Ap­parent on the Face of the Record or the Re­turn of Service, should be raised by a Plea to the Jurisdiction of the Person, as, for exam­ple, where the Return of the Service is to be contradicted,25 If the defendant wishes to object that the Court has not acquired Ju­risdiction of his Person, owing to some De­fect in the Service of the Summons, he should Appear in Person and not by Attorney,26
24. Diblee v. Davison, 25 Ill. 486 (1861).
25. Willard v. Zehr, 215 III. 148, 74 N.E. 107 (1905); Creer v, Young, 120 III. 184, 11 N.E. 167 (1887).
2~. A Plea to the Jurisdiction of the person must be

Pleaded in person and not by Attorney, If Pleaded

by an Attorney, it amounts to a Submission to the

Jurisdiction of the Court. Illinois: Mineral Point

B. Co. v. Keep, 22 Iii. 0, 74 Am.Dec. 124 (1859);

Nispel v. Western Union II. Co., 64 III. 311 (1872);

Pratt v. Harris, 295 11]. 504, 129 N.E. 277 (1920);

Virginia: Culpeper Nat. Bank v. Tidewater Imp.

Co., Inc., 119 Va, 73, 89 SE. 118 (1916), held that a

Plea to the Jurisdiction of the person by a corpo­ration must be by an Attorney; West virginia:

Davidson v. Watts, 111 Va. 394, 69 8.11. 328 (1910). “When wo consider the tendency of the times Is to­ward simple, efficient and common sense

that the Dilatory Plea is loaded down with tech­nicalities, the reason for which, and the usefulness

Sec. 205

PLEAS—DILATORY

415

and restrict his Appearance to the sole pur­pose of raising this objection; otherwise he waives it.


The Distinction Between Pleas to the Juris­diction and Pleas in Abatement

ACCORDING to Martin, Pleas to the Ju­risdiction differed from Pleas in Abatement, in the following respects:


First, in being always Pleaded in Person;
second, in always requiring Half Defense, while some Pleas in Abatement were said to be good with Full Defense; and
Tlvh’d, in Fraying Judgment, if the Court will take further Cognizance of the Action.

In other respects, says Martin, in that they

-abated the Writ or Action, they were essen­tially the same.27 Some authorities have classed Pleas to the Jurisdiction with Pleas in Abatement, while others have treated them under both heads.

FORM OF PLEA TO THE JURISDICTION

AND VENUE
George T. Sidwell filed his Plea in person as follows: 28
“State of fllinois, County of Vermilion—ss.:

In the Circuit Court—

Ella Sandusky

V.

George H. Sidwell &

George P. Sidwell,

Gen. No. 11901.

May Term, A.D. 1897.

of which, has long since departed, should we not do well to abolish It altogether and substitute therefor the Preliminary Motion?” Moreland, The Plea to the Jurisdiction, 3 Va.L.Reg. (N.S.) 249, 256 (1917).
~7. Martin, Civil Procedure at Common Law, c. X, Defences by Way of Dilatory Pleas, 245, Pleas to the Jurisdiction, 200 (St. Paul, 1905).
~8. See Sanduslry y. Sidweli, 73 lIl,App. 491 (1897), aff’d in 173 Ill. 493, 50 N.E. 1003 (1898), in which the Dlaiatiff Demurred to the Plea in Abatement and

Kaiser & Heppy Com.Law PIdg. HG—iS

“AND the said George T. Sidwell, one of the defendants in the above entitled cause, for the sole purpose of pleading to the Juris­diction of the said court, comes and says that this court ought not to have or take further cognizance of the said action, because the supposed cause or causes of action, and each and every one of them, arose in the county of Cook, in said state of Illinois, and not with­in the said county of Vermilion, and that the said action is not a local action, and that both he and his codefendant, George H. Sidwell, at the time said suit was begun, and at all times since, have resided in said county of Cook, and not within the said county of Ver­milion; that process was served on the said George H. Sidwell while he was on a public railroad train, passing through the said county of Vermilion, and not within the said county of Cook, where he resides, and was sewed on this defendant in the said county of Cook, and not within the said county of Vermilion; and this the said defendant is ready to verify.
“Wherefore he prays judgment whether this court can or will take further cognizance of this action. George T. Sidwell,”

“State of Illinois, County of Cook—ss.:

“George T. Sidwell, being first duly sworn, says that the foregoing Plea, by him sub­scribed, and the statements therein made, are true.

George T. Sidwell

“Subscribed and sworn to before me this 17th day of May, A.D. 1897.
“[Seal.] Robert Jeffrey, Notary Public.”
SHIPMAN, Handbook on Common Law

Pleading, c. XVI, Dilatory Pleas, § 224,

Form of Plea to the Jurisdiction and



Venue, 387 (3rd ed,, by Ballantine, St.

Paul, 1923).
therefore admitted that be did not Commence the Action where the defendant resided. The Court ordered the Writ of Summons quashed and dis­missed the Suit. See Sherburne v, hyde, 185 Ill. 582,57 N.E. 770 (1000).

416

DEFENSIVE PLEADINGS

Cii. 21


PLEAS JN ABATEMENT
206, A Plea in Abatementt° is one that shows some ground for Abating or Defeating the Particular Aflion, without destroying the Right of Action itself. Matters in Abate­ment include:

(I) Wrong Venue or Place of Trial;
(II) The Personal Disability of one of

the Parties to sue or be sued;

(lii) That the Action is Prematurely Brought;

(IV) The Pendency of Another Action for the sante cause;

(V) Misnomer;
(Vi) Nonjoinder or Misjoinder of Parties.
The Situation Which Called for the Use of five Plea in Abatement

WHERE a defendant, on examination of. the plaintiff’s Declaration, perceives no ground for objecting to the Jurisdiction of the Court, but finds that matters exist by reason of which, though the Cause of Action is not affected, the present Suit cannot be maintained, he should Plead in Abatement.3°


Definition and Effect

PLEAS in Abatement are variously de­fined, depending upon their respective Classi­fications, but, broadly speaking, include all such Pleas as seek to defeat a Specific Ac­.tion, yet merely delay or prevent the en­.forcement of the Right of Action. By way of contrast, Pleas in Bar seek to bring about


29. A Plea In Abatement has been defined by Martin as follows: “By a Plea In Abatement the defendant shows Matter to the Court why be should not be Impleaded or Sued; or if Impleaded, not in the man­ner and form employed by the plaintiff; and pray­ing that the Writ or Plaint may Abate.” Martin, Cis’Il Proeednre at Oommon Law, c, X, Defences by Way of Dilatory Pleas, Art. IV, Pleas in Abate­ment, 210 (St. Pail, 1905), citing Jacob, Dictionary, Abatement I. (London 2809); Comyn, Dig, “Abate­ment,” B. 1 (London, 1822).
:3. As to the nature and effect of, and the necessity for, Pleas In Abatement, see Pltts Sons 1Mg. Co. v. Commercial flat, Bank, 121 111, 582, 13 N.E. 156

(18S7).


a Final Judgment on the merits on the Right of Action.
If sustained, the effect of a Plea in Abate­ment is not to dispose of the Right of Action, either entirely, nor even as far as the Par­ticular Court is concerned, as is the case with a Plea to the Jurisdiction; nor, on the other hand, is it merely to temporarily Sus­pend the Action, as is the case with a Plea in Suspension; but its effect, as observed above, is to defeat entirely that Particular Action, leaving the plaintiff free, however, to assert his Right of Action in Another Suit, and in the Same Court. It is some­times said that the Plea merely tends to de­lay the Action, but this is inaccurate. It en­tirely defeats the Particular Action, but it merely delays the enforcement of the Rig/vt of Action, which, thereafter, may again be prosecuted, avoiding the Defect which led to the demise of the Particular Original Ac­tion.
Classification of Pleas in Abatement

IN any event the Writ, on which the plain­tiff’s Cause of Action was grounded, was Abatable by a Plea formally attacking its suffiCiency, or by a Plea to the Person suing or to the Person sued, showing that No Writ should have been issued in favor of the plain­tiff or against the defendant. In accord­ance with this broad view, Picas in Abate­ment were classified as follows:
First, Pleas relating to the Writ, as to the Form of It and to the Action of It; ~
Second, Pleas relating to the Count or Dec­Jaration;
Third, Pleas relating either to the Disabil­ity of the Person of the Plaintiff or the Per­son of the Defendant.
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