Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-12-02
SUPREME COURT OPINION.
NASHVILLE TENNESSEE, DECEMBER TERN, Is
ThoNAs u coI9NELl7 ATToRHEf sENERAL AND HILR
TRABrE Il LUCAS rs NJ O. HIGDEN

THOMAS copgwFrn TnTronzrr ars1nAr 1sp arr0Rrrn,
TRABUE 4 LUCAS g. NJ. c. HIGDEN.
This suit was instituted by attachment in the Circuit
Court of Maury county The action is founded five
promissory notes. amounting without interest, to the
aggregate sum Of S2,556eS due the firm of Trabue d
Lucas. The grounds laid for the attachment in the s
davit that he defendant is about to his prop
cy beyond the limits Of tho State and that they believe
he is also about rauducny to dispose of his property
10 defeat his creditors in the collection of their
debts. Bond executed required by law, and the
attachment issued which duly returned, levied on
| the lands aud negroes of the defen daut. ,--s
The declaration was filed within the proper tine and
in The ordnary form. The defendant plead an ab ate
mcnt Tire plea assumes to deny the truth Of The ada
Wit upon which the attachment issued and also the
hory Of the Clerk Of the Circuit Court to issue the at
tachmont The plea is in respects inartihcialy
drawn and subject to than criticism but, in
aspect of this record do not deem important to dis
its defects, except in two particulars. The
plea, after informally alleging the matter before ndi
caed which is in part matter de hors perhaps properly
enough, concludes as follows
"And this the defendant is ready verify, wherefore
Dravs Judgment Of said writ and that the same may
| qusshed." l., Chitty Pleadings, 46l.l
The plea filed within time at the return term, Ver
| fed as follows:
"Sworn TO and subscribed before me- January the 9Th,
| 1861" SAMUEL p MCGAw, Clerk.
! After filing the plea the record shows the was
continued by consent Of parties from time to time, until
| the May term, 1865, when upon motion Of the deen-
dant, leave given nm 20 amend the Verlheauon
his plea in abatement formally to 'that it
true in substance and in fact" To this amendment the
plaintiffs excepted which Ovcrruled by the c0ur
and Che ameud meut allowed. Thepupon the plaintfs
move to strike out the plea, which motion refused
In this state of the pleadngs far as the record dis
doses the facts at the January torn, 1857, the cause
was submitted to Jury Who il seems vas sw0rp to
tissues in favor Of tho defendant Upon this finding Of
the jury Judgment was pronounced BY tho court, dis
! charffar The attachment and rendering Judgment
tAnir fho
! ton bond for COSTS -rE Hf-getH IN HF
Motions for new trial and IN arrest Of Judgment
entered and overruled from WHICH appeal to this
court is prosecuted. tF fEFE FF -HstAa&E
IT is ceai under the act Of 17S9, CHI. l. and the uni
form practice Of couTs is the verifcation was not
sufficient but is is said the sctness Of the rule adopted
under the act Of 1883, has been modified by the Code
seotion2 90i We do not think So True, the language
employed in the Code is not precisely the same used in
the former statute but il Is il substance and effect TIE
same and eannot therefore be held TO work any odif
cation Of the rule. The plea having been filed without
proper Yeridcaton5 was Improperly received by the
court and might have been treated by the plaintiffs as
mere nulliy They could have moved TO have il taken
from the file or they could have taken Judgment by
default at any time after the right of Judgment by
default accrued if plea had been in, totally disre
garding it. Code, 29OI Yer, 10; Hum, 5O4 2
PLEAS in abatement beipg regardsdas dilatary pleas,
and not going to Che merits Of the action to be dis
c0ursgcd and always taken strict juris but prior to
4 the adoption Of the Code which greatly enlarges the
has held that it legally competent for the circuit
Judge in the exercise Of discretion, 20 grant amend
ments to such pleas aud certainly since the extension
Of the power under the Code, it cannot be de-
MED. The power to grant amendments in matter Of
form, Of tho nature Of which the present is
example, is legal discretion -reting with the inferior
courts, and without a manifest abuse of that iscTe
ton this court will not reverse for that reason alone
Helm Rogers Hum, lO5; Rainey and Anderson
vs.. Saunders, Hum 447.
The matter of the plea if formally presented ia the
g sl,o
sustained by proof would have been safeient to de-
feat the writ; Harris ct al Taylor Sneed, 500.
But it not. think, presented The plea
is strictly formal but it is obnoxious to the fault
u duplicity. Two issues presented in it, one to
he jury and the other 10 the court, issue Of
acts and the other Of law, which is in violation Of
hc plainest principle Of pleading. Chitys plead 532
Bat this defect at common Law could only be taken
advantage Of by special demurrer. The Code heweY
section 2sS2 has expressly changed this rule Of
the law, and the court is authorized to strike
cut any pleading had for duPlioityUnneceSsary pro-
lx-irrceyant frivolous, motion of the adverse
party. 1t follows therefore, that it was error in tho
Circuit Court, in overrung the motion Of the plain
tits to strike out the defendants plea in abatement
after the amendment Of its yerifcation
The circuit court also erred, think in overriding
the plaintiffs motion in arrest Of judgment We have
already shown that there was 70 issue enaered to the
contrary n the peadings; and although The want Of
similar Is cured after verdict, the want Of replica
ton is cured by verdict. The verdict Of jury
without issue to try Is nuty, and affords no le
| & Hunt Snccd, I43. A party must demur plead
One the other Of these he is bound to take
lwhic he TO maintain his action or defense }
until issue he tcndered IL he does neither but
fescs the right Of The adverse party, says nothing
the court implediacly gives judgment for his adver
sary; in ,hc former by confession, in the lat
ter by uoa Prrss nil deceit. Stephens Pleading
1875.
la this case AFTER the refusal of the court sustain
tie plaintiffs motion to strike out the plea in abate
mcDf, Il then their duty to reply the to the plea,
either by direct Traverse matter in avoidance, aud
the defendant WAS bound to reOin, if need be, and
thus the ploadngs ought to have been continued until
ha issue presented without which the jury had
nothing try; and their finding "the issues in favor
Of the defendant, when none tended TO the
trary, must be treated mere nuy, and 1t was error
to pronounce Judgment upon such verdict
The question Of evidence raised in argument We do
not deem necessary 10 be determined the judgment of
The Circuit Court must be reversed and the Gauss be
renanded 10 be- further proceeded ID.
IT A-t-'As4a- D. MIELIGAN, Judge
I Tn Clerk.