McIntire v. Calhoun

Hall, J. The question in this case is, can an answer contain both a plea to the jurisdiction over the person of defendants and a defence to the merits, or does the latter waive the former ? If a defence to the merits may be included in the answer with a plea to such jurisdiction, the judgment of the circuit court must be affirmed; if not, the judgment must be reversed. In Fordyce v. Hathorn (57 Mo. 120), it was held that, “when matters in abatement and bar are contained in the same answer, the matters in abatement are waived by setting up the defence in bar.” It was also so held in Ripstein v. Insurance Co. (57 Mo. 86). In Little v. Harrington (71 Mo. 390), the whole subject was reviewed, and it was explained that the common-law rule, announced in the former cases, had been changed by our code. It was there said that only one answer is contem. plated by our code, and that the answer may contain whatever defences the defendant may have, in disregarof the common-law-rule. The former cases were overruled. In Byler v. Jones (79 Mo. 263), Little v. Harrington was approved. As said in Little v. Harrington (supra) in neither of the cases reported in 57 Mo. “are the provisions of the code * * * alluded to or discussed, but the case [516] of Cannon v. McManus (17 Mo. 345), is relied on as authority — a case which originated by attachment, and in which the statute authorizing attachment suits expressly permits the defendant to file a plea in the nature of a plea in abatement.” In Moody v. Deutsch (85 Mo. 237), under one of the numerous points, the two cases in 57 Mo. are cited and approved. The subsequent cases of Little v. Harrington, and of Byler v. Jones, are not referred to, the provisions of the code are not alluded to, the subject is not discussed; the two former cases, in 57 Mo., are simply cited and approved, as a matter of course, as being conclusive and of controlling authority. Under the circumstances, it is certain that in Moody v. Deutsch the cases of Little v. Harrington, and Byler v. Jones, were overlooked, and that the court did not intend to overrule them. The subject stands as if the case of Moody v. Deutsch had never been decided. We are bound by the last decision of the Supreme Court on any question of law, but, under the circumstances referred to, we feel it incumbent upon us to disregard the decision in Moody v. Deutsch upon the question in this case. We feel constrained to consider the case of Little v. Harrington, approved in Byler v. Jones, as the last expression of the opinion of the Supreme Court on that question. Judgment affirmed. All concur.