Tiffany v. Spalding

Breese, J. The defendant, by his plea in this case, brought himself within sec. 2, chap. 83, R. S. 1845, (Scates’ Comp. 241,) and the court should have abated the suit. It shows a state of facts which prevented the action of the court. It can be in practice, in cases like this under our peculiar statute, a matter of no moment whether such plea is technically to the writ or to the jurisdiction. The facts stated in it, show the court had not properly acquired jurisdiction of the case, the defendant neither residing in Cook, nor the cause of action specifically payable there, nor accruing there. Under the state of facts shown by the plea, the Common Pleas had no right to render judgment against the defendant. It should have overruled the demurrer to the plea and abated the suit, if the plaintiff did not wish to take issue on the part of the plea by replying to them. On failing to reply, the court should give judgment against the plaintiff, abating the suit. The judgment of the court below is reversed and the cause remanded, with instructions to proceed in conformity to this opinion. Judgment reversed.