Leo Kee v. Wah Sing Chong

Pee Curiam. — This is an action upon an attachment bond, brought by appellant against respondents. The cause was tried before a jury, and a verdict returned in favor of appellant for $300. A motion for a new trial interposed by respondents was granted on the ground, as stated in the order of the court, that the action was prematurely [679] brought. From the order granting a new trial this appeal was taken. The only error assigned is that the court set aside the verdict and granted a new trial on the ground that the action had .been prematurely brought. The defense that the action was prematurely brought was not raised in the pleadings, and it appears to have been suggested for the first time on the hearing of the motion for a new trial. This objection can not be raised for the first time after trial. Hickey v. Thompson, 52 Ark. 234 (12 S. W. 475). It has been held that the objection must be raised by plea in abatement, and can not be alleged as a defense on the merits. 1 Enc. Pl. & Pr., 22. It has also been held that a pleading to the merits is a waiver of the objection that the action has been prematurely brought. Fiore v. Ladd, 29 Ore. 528 (46 Pac. 144). If it be conceded, however, that, under our code practice, the objection may be taken by answer, along with other defenses to the merits, yet, in any event, it should be raised by answer of some kind. Smith v. Holmes, 19 N. Y. 271. The only ground stated in the motion for new trial that may be said to inferentially suggest that this point was raised even at the trial is the following: “Errors of law occurring at the trial, and excepted to by the defendants.” But there is no statement of facts here, and nothing in the record to show that the point was even raised by way of objection to offered testimony. As we have seen, however, if the objection to testimony had been so made, it would have been unavailable in the absence of a pleading upon the subject. The motion for new trial having been expressly granted upon the one ground, we think the court erred for reasons above stated. The judgment is therefore reversed, and the cause re [680] manded, with instructions to the lower court to deny the motion for new trial, and enter judgment upon the verdict of the jury.