Dailey v. Iselin

Opinion by Mb. Justice Brown, A plea in abatement was filed by the defendant in the court below, raising the question of its jurisdiction over him. When the case was called for trial, after having been continued three times, the court’s attention was called to this plea, and the very proper suggestion made that it must first be disposed of. Plaintiffs had not joined issue on it, ñor moved to strike it off; but, for reasons which need not be here stated, for they cannot be now considered, urged the court to ignore it and to irregularly order the trial to proceed with this undisposed of plea on the record. The reasons given for asking the court to disregard it would have been considered below and reviewed here on an appeal from a final judgment, if the plaintiffs had taken proper steps to dispose of it; but having failed to do so, and having neglected and refused to file a replication, when permitted as the jury was about to be called, there was nothing for the court to do, in the face of their default, or what may not be unfairly termed their perversity, but to order the case continued and to direct that it remain off the issue list, to which it can be restored whenever the plaintiffs see fit to proceed regularly to dispose of the plea in abatement. The order of the court was clearly interlocutory, made necessary by the conduct of the plaintiffs, preventing a final judgment, on an appeal [202] from which any alleged error committed at any stage of the proceedings can be reviewed. No appeal lies from such an order, and it is quashed.