Smith v. Dexter

Decided January 25, 1877

Massachusetts Supreme Judicial Court · decided 1877-01-25

<p>Objections to the authority of a sheriff to serve a writ of replevin upon his deputy, and to the form of the replevin bond, can only be taken by answer in abatement or motion to dismiss, and not by demurrer.</p> <p>If a defence, which should be taken by plea in abatement or motion to dismiss, is taken, with consent of parties, by demurrer, no exception lies to the ruling of the Superior Court thereon.</p>

Relies on Cooke v. Gibbs · Houghton v. Ware

Good law ✅— No negative treatment on recordhow we know

Decided 1877-01-25

How this case has been cited

Cited by 5 later decisions — most recently December 1949

5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Gray, C. J.

¶1Thq objections to the authority of the officer who served the writ, and to the form of the replevin bond taken in the course of the service, could not properly be made by demurrer, but only by answer in abatement or motion to dismiss, upon either of which the decision of the court below would be final. Docmanny v. Davenant, 6 Mod. 198; S. C. 1 Salk. 220. Bullythorpe v. Turner, Willes, 475, 479. Cooke v. Gibbs, 3 Mass. 193, 196. Browning v. Bancroft, 5 Met. 88. Houghton v. Ware, 113 Mass. 49. Gen. Sts. c. 114, § 10; c. 115, § 7. The irregular form of presenting these questions to that court, appearing to have been by assent of the parties, affords no ground of exception, and cannot give this court jurisdiction to decide issues which could not be regularly brought before it.

¶2Exceptions overruled.