Hooker v. Greene

Rtau, C. J. It is, perhaps, among the incongruities of the common law, that there are matters pleadable either in abatement or in bar. 1 Chitty, 466. Among these, probably, is the defense that the action is misconceived; though this is not usually so pleaded, as the defense is available under plea in bar. 1 Chitty, 453; Grould, 268. Such is the nature of the plea involved in this appeal. In order to bring the dam, which is the subject of- the action, within the mill-dam act, the complaint avers that the stream on which it is built is not navigable. The second defense sets up that it is navigable; that the action is, .therefore, improperly brought, and prays that it should be abated. Strictly, perhaps, this defense might be pleaded in abatement; but, because they are dilatory, great precision is required in framing pleas in abatement. They should be certain to every intent. 1 Chitty, 462. And pleading that this action is misconceived, the plea should, perhaps, give the plaintiff a better writ — that is, the action which should be brought; for, if no action would lie, the plea should be in bar. 1 Chitty, 446,458; Stephen, 431. But it is unnecessary to determine the sufficiency of this defense, for it is unquestionably waived or overruled by the defenses in bar immediately preceding and succeeding it in the answer. At the common law, pleading in bar waived all pleas in [277] abatement. Gould, 31. The Code, however, allows defenses in abatement and bar to be pleaded in one answer. Supervisors v. Van Stralen, 45 Wis., 675. But the Code does not permit the same defense to be pleaded in abatement and in bar. Dutcher v. Dutcher, 39 Wis., 651. And when the same matter is set up to abate the action and to 'bar it, by all analogies the plea in bar must override the plea in abatement. Dilatory pleas "are not favored; and it would be out of all keeping to permit the defendant to tender for trial an issue in abatement, and, failing in that, to tender for trial in the same answer the self-same issue in bar. In that case the defense in bar must stand, and the defense in abatement be held a nullity. Here, the general denial of the first defense puts in issue the averment of the complaint that the stream is not navigable, and operates to override the same defense pleaded in abatement. A similar result is produced by the third defense, which pleads that the dam was built under the act of 1848, “to authorize the construction of a dam across the Crawfish river.” For the purposes of the answer it must be assumed that the stream is navigable. Being so, the act of 1848 is a public act. Att'y Gen. v. Eau Claire, 37 Wis., 400; Wis. R. I. Co. v. Manson, 43 Wis., 255. It is, indeed, a public act upon its face, because it applies the provisions of the mill-dam act, itself a public statute, to the dam which it authorizes. And the court is bound to take judicial notice that it subjects the dam here in question to the mill-dam act. For, though the mill-dam act of 1840 was repealed by the revision of 1849, yet its provisions survived as part of the act of 1848, authorizing this dam. Wood v. Hustis, 17 Wis., 416; Crosby v. Smith, 19 Wis., 449. And when the mill-dam act was revived, in 1857, and afterwards amended from time to time, the amendments of it operate equally to amend its provisions adopted in the act of 1848. And so it is immaterial whether the stream in question be navigable or not. In either case the dam in question is equally subject to the pro [278] visions of the mill-dam act, and this action equally lies under that statute. The defense in abatement, therefore, tendered an immaterial issue. The learned counsel for the respondent cites in support of the plea, Willard v. Giles, 24 Wis., 319, and Bruce v. Burr, 67 N. Y., 237, holding that inconsistent defenses may be set up in the same answer; hut these decisions are founded upon that provision of the .Code now found in section 2657, R. S., and this plainly has, relation to defenses in bar only, “ whether they be such as were formerly denominated legal or equitable, or both.” This language appears to exclude dilatory pleas. Indeed, the Code seems to take no notice of dilatory pleas; and it is, pei’haps, to be regretted that this court has held that they may be pleaded in one answer with defenses in bar. Freeman v. Carpenter, 17 Wis., 126. But dilatory pleas are not to be encouraged. And though, under the Code, pleading in bar does not necessarily waive defenses in abatement, yet a defendant ought not to be permitted to set up a defense in abatement, and in the same answer to contradict it by matter "pleaded in bar. At the common law any defense in bar waived any defense in abatement. It is too late to hold this under the Code. But it is not too late to hold that, by analogy to the common-law rule, a defense in bar overrules an inconsistent defense in abatement. This is- sanctioned by the accepted simplicity of the Code, as well as by the severity of common-law rules towards dilatory pleas. It would be inconsistent with the rules of pleading, whether at the common law or under the Code, to permit a defendant to delay or postpone an action while he himself solemnly denies the truth of the premises on which he claims delay or postponement. The reasons for tolerating inconsistent defenses in bar, that a just defense on the merits may prevail, have ho application to dilatory defenses. The pleader who interposes a plea of abatement in an answer, must see to it that his matter in abatement is consistent with [279] tlie rest of his answer; and, as a defense in abatement is waived by a defense of the same matter in bar, so a defense in bar overrules a defense in abatement inconsistent with it. In every view the judgment appealed from is founded on a mistrial, and cannot be permitted to stand. By the Court. — The judgment is reversed, and the cause remanded to the court below for a venire de novo.