Feather v. Hustead

Citations

• 254 Pa. 357
• 98 A. 971
• 1916 Pa. LEXIS 734

Syllabus

<p>Practice, O. P. — Affidavits of defense — Matter in abatement — Insufficient averments — Prior action.</p> <p>1. An affidavit of defense filed prior to the time when the Practice Act of May 14, 1915, P. L. 483, went into effect, and which alleges everything essential to a good plea in abatement and distinctly shows that the allegations are for the purpose of abating the former action, should be given effect as such.</p> <p>2. A plea in abatement must be entered before one in bar, and the former fails of effect after the filing of the latter.</p> <p>3. When matter in abatement is rejected, the defendant has the right to answer over.</p> <p>4. When the matter pleaded in abatement is the pendency of a former suit, the truth of the plea should be determined by an inspection of the records of the two actions.</p> <p>5. An affidavit of defense averring matter in abatement must be pleaded with exactness and should be certain to every intent; it cannot be aided by any intendment or inference.</p> <p>. 6. Where a plaintiff commences a second or subsequent suit on a pending cause of action, the remedy is to immediately set up as a matter of defense the pendency of the prior action.</p> <p>7. An affidavit of defense to an action on a promissory note alleging that another suit had been brought against the defendant on the identical note and was still pending and undetermined in another county, but failing to aver that the other suit was “a ' prior action,” is insufficient.</p>