Metzenberger v. Keil

Philips, P. J. This is an action by attachment. The issue was tried on the plea in abatement, and found for the plaintiffs. Prom the judgment rendered thereon, and before any judgment on the merits, the defendant appealed. Prior to the revision of 1879, it was held that no appeal would lie from a judgment on a plea in abatement. Davis v. Perry, 46 Mo. 449; Jones v. Snodgrass, 54 Mo. 597. Under section 439, Revised Statutes, 1879, it is permitted to a plaintiff, against whom judgment has gone on the plea in abatement, to take an appeal therefrom without awaiting final judgment on the merits. But where the judgment goes against the defendant on such plea, he must save his exceptions [131] thereto, file bill of exceptions, and await the judgment on the merits before he can appeal. Fagley v. Vail, 11 Mo. App. 601; Duncan v. Forgey, 25 Mo. App. 310; Hicks v. Martin, 25 Mo. App. 365. It follows that the appeal in this case was prematurely taken, and the same is dismissed. All concur.