McNeely v. Y. & M. V. R. R.

Citations

• 119 Miss. 897
• 81 So. 641

Syllabus

<p>1. Pleading. Plea in abatement. Adverse holding. Effect.</p> <p>Where a plaintiff takes issue on a plea in abatement and it is found in his favor, the judgment is quod recuperet.</p> <p>2. Same.</p> <p>Where an issue of fact joined on a plea of abatement is found in favor of the plaintiff, the effect of it is an admission of the merits of the plaintiff’s claim, and the judgment is final in favor of plaintiff, and the jury which determined the issue should determine the plaintiff’s damages.</p> <p>3. Same.</p> <p>A party having his plea in abatement passed upon by a jury and found against him, is not permitted to set up the same matter in bar, and again to go to the jury upon it.</p> <p>4. Pleading. Plea in abatement. Plea to merits.</p> <p>Not withstanding sections 740 and 741, Code 1906 (Sections 523 and 524, Hemingway’s Code, permit the defendant to file several pleas in bar at the same time and to the same declaration, still a plea in abatement and a plea in bar cannot be pleaded together in the same case, and when the defendant obtained leave of court to file a plea in abatement after having filed a plea in bar, this in legal effect, withdrew its plea in bar, and when the issue was joined and the issue determined on the plea in abatement the defendant’s right to contest and demand of the plaintiffs so far as the right was concerned, ceased, except as to the question of the amount fo damages.</p>