Arizona weekly citizen., 1889-09-28
PLEAS IN ABATEMENT.


 An article in the Gazette of the Doth inst. on pleas in abatement" has. .beenat- tributed to the would-be attorney gen eral. H. \. Alexander. Not being famil jar with the law ourselves and thinking that Judge AleXander's herculean effort should not go uncontradicted, We sub mitted his statement to a well-known attorney. who expressed surprise at the ignorance and stupidity displayed by the author of it.
 He, the author of the article under consideration, says that "the District Court of Maricopa county, is the only Court ever heard of that favors pleas ln abatement" Where did this modern commentator learn his law? The plea is as familiar and common as plea ID bar. or g plea of accord and satisfaction, or any other plea used in the practice in courts of general jurisdiction. It is re- sorted to in pleading any matters of de fense to a suit which only suspends the right to sue, or defeat the particular proceeding instituted.
 It seems that this modern comments tor was knocked out in the first round by the Courts decision in the case of the Territory against Thomas Hugkes.
 The title of action was Fl. N. Alexan- der. Attorney General, in the name of and for the Territory, against Thomas Hughes The first paragraph in the complaint is "that the relator is the duly appointed, qualified and acting at torney general for the Territory of Ari- zona." This allegation being denied, the very first proposition to be estab- lished by the plaintiff was that the al- legation was true. The suit had no standing in Court unless it was brought by the proper law officer; and the Judge could not do otherwise than decide that point first.
 Would it not have been an idle piece of work for the Judge to have attempt ed to decide who was entitled to the office of Territorial Auditor, when the suit was brought without authority? As between Hughes and Meador the decision would have amounted to noth ing. It would have been mere dictum and binding upon no one.
 By virtue of Paragraph 734, Of the Revised Statutes of Arizona, the de- fendent in all cases is required to make his pleas in their order. 1st, denying the jurisdiction of the court; 2nd. mat ters in abatement of the suit.
 Paragraph "A of the same statute, makes it incumbent upon the court to decide and determine the pleas in due order of pleading. It is plain to be seen that it was the duty of the Judge to first determine whether or not the action was properly brought by the person alleging himself to be the attorney gen. eral of the Territory.
 This would-be legal light expresses great fear on account of the decision inthe Hughes case, and refers to the tax levy on railroads in the Territory, as an in- stance of danger. In making this refer ence he again exhibits his ignorance of the law. The plea in abatement, if sus- tained by the court. defeats the plain tiff's right to maintain the suit, on ac- count of some present disability on the part of the plaintiff.
 If suit should be brought by the Ter ritory against the Railroad Companies for their taxes, how could a plea in abatement be made by the defendant?
 The Territorial board of equalization would not be plaintiffs, and no disability of the board could be reached by plea in abatement in suit to recover by the Territory.
 Their acts at least would be the action of de facto officers, and whether legal or illegal could not be enquired into in collateral proceeding.