Fisher v. Fraprie

By the Court. The answer filed by the defendant contained both an answer in abatement and an answer to the merits; and the validity of either was not affected by their being pleaded together. Claflin v. Thayer, 13 Gray, 459. The decision in the Superior Court, whether in law or fact, upon the answer in abatement, was indeed final. Gen. Sts. c. 115, § 7. Wildes v [473] Marshall, 117 Mass. 311. But if the answer in abatement was overruled as matter of law, the defendant had the right to answer over; if as matter of fact, he might do so at the discretion of the judge. Gen. Sts. c. 129, § 40. Young v. Gilles, 113 Mass. 34. The plaintiff has therefore no just ground of exception to the order of the judge allowing a trial on the answer to the merits. Exceptions overruled.