Hudgens v. Creola Lumber Co.

SAYRE, J. Dowdell, C. J., and McClellan, J., concur with the writer that there is no error shoAvn by the record. On the trial before the justice of the peace the defendant filed a formal plea to the jurisdiction. Demurrer being sustained, it Avas driven to a plea in bar. The judgment sustaining the demurrer became merged in the final judgment against the defendant, and Avas superseded when that judgment was superseded by the appeal. On the removal of the cause by appeal the justice of the peace sent to the law and equity court the original papers in the cause and a statement of the case and the judgment rendered by him, as he was by statute required to do. In this state of the case a judgment by default could not have been properly passed by the court to which the appeal Avas taken. The effect of the proceedings Avas to leave the plea in abatement pending in the cause, Avith the right in defendant to amend it, or to file a neAV plea asserting the same defense in improved form, and this right would continue until the defendant by its course indicated a purpose to forego the plea in abatement. True, if a formal plea in bar Avas filed in the primary court, it also was pending at the same time; but that fact cannot be permitted to operate to the prej [564] udice of the plea in abatement, for the reason that the ruling of the trial court against the latter plea drove the defendant to the filing of the former. As the case was in the law and equity court, no new pleas in bar being filed, nor any action taken by the defendant which amounted to an abandonment of its plea in abatement, the cause stood for trial on pleas in abatement and bar in their proper order. The trial court might properly have required the plea in abatement to have been disposed of at the first term. Not having done so, and nothing being shown which amounted to a waiver of the defense, we are of opinion that there was no error in allowing the plea to be amended and the same defense interposed in better shape at the next term. Affirmed. Dowdell, C. J., and Simpson, Anderson, McClellan, and Mayfield, JJ., concur. Evans, J., dissents.