Beattie v. Stocking

¶1This was a suit by attachment returnable to the January term, 1876, of the Buchanan circuit court. On the 3rd day of January, being the first day of the term, the following order was entered of record: “ On motion of defendant, leave is granted him to plead herein on the third Monday- of the present term, or answer the 22nd day *197of January, 1876.” On the 5th day of January, 1876, the defendant filed a plea in abatement, which was, on motion of the plaintiff, stricken out by the court, for the reason that the defendant had waived his right to plead in abatement by taking leave to answer. The defendant refusing to pLead further, final judgment was rendered against him, from which he has appealed to this court. The judgment of the circuit court must be reversed. Had the defendant 'filed an answer, or'taken leave to answer unconditionally, he would have lost his right to plead in abatement. But the very language of the order of the court preserves to him the right to elect whether he will plead in abatement or answer to the merits. The effect of the order was to fix a time at which he might plead in abatement if he chose, and a time at which, if he did.not elect to plead in abatement, he might answer. Judgment reversed and cause remanded.