Dean v. Hubbard

Martin, J. delivered the opinion of the court. This case was before us last September—12 Martin, 317. We reversed the judgment of the district court, dismissing the suit for want of an answer to the defendant’s interrogatories ; being of opinion that the latter, by going to trial, had waved his right to move for [567] a dismissal ; and the case was remanded for trial. West’n District Sept. 1823. Baldwin for the plaintiff, Bullard for the defendant. The plaintiff had judgment, and the defendant builds his hopes of reversing the judgment on an assignment of error, viz: that the district court did not grant his waved motion to dismiss. It is true, when a new trial is granted, the case is afterwards proceeded on as if no trial had taken place, but motions of the kind alluded to are, in their nature, pleas in abatements, and ought to be resorted to without delay ; they are waved by any proceeding clearly evincing an intention not to resort to them ; and when once waved they cannot be resumed. It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.