McFadden v. Heisen

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is assigned as error that the court entered a decree of foreclosure in the face of the appellee’s contract to discontinue the suit. The appellee, for a valuable consideration, agreed to discontinue foreclosure proceedings, and not to institute further proceedings for the collection of his debt, provided that the said debt be paid in stipulated installments. There was default in the payment of the installments, and the appellee, instead of proceeding upon the original bill, filed an amended bill, setting up his cause of suit, and praying for foreclosure. The agreement to discontinue was never carried out by any order or entry in the journal of the court, nor was there any paper filed in the court, embodying an agreement to discontinue on which the court could have acted. The court had therefore full jurisdiction to proceed, and, even if an order-of discontinuance had been entered, the filing of the amended bill with the answer of the appellant thereto on the merits, gave the court jurisdiction to proceed to foreclosure. To enforce his right to have the cause dismissed, in pursuance of the agreement to discontinue, the plaintiff in error should have pleaded in abatement or moved to dismiss, with a supporting affidavit. Christopher v. Ballinger, 47 Ill. 107; Buel v. Dewey, 22 How. Prac. (N. Y.) 342. In Callanan v. Port Huron & Northwestern Ry., 61 Mich. 16, 27 N. W. 718, Chief Justice Campbell said: “It certainly seems difficult to discover how a mere executory contract can operate ipso facto upon a law suit pending or not pending.” In People v. Onondaga Com. Pleas, 1 Wend. (N. Y.) 314, it was. held that the right to a discontinuance was waived by going to trial and cross-examining witnesses. Of similar import are Brent v. Coyle, 2 Cranch (C. C.) 287, Fed. Cas. No. 1,837; Buel v. Dewey, 22 How. Prac. (N. Y.) 342; Mahon v. Mahon’s Adm’r, 19 Ind. 324; Hayes V. Dunn, 136 Ala. 528, 34 South. 944; Maynard v. May, 2 Cold. (Tenn.) 44. And even if the agreement to discontinue was, as contended by the appellant, in effect a discontinuance of the suit, an objection such as this, to proceeding in the cause, which did not go to the jurisdiction of the court or the validity of the rights involved or the merits of the controversy, could only have been taken by a plea in abatement and before pleading to the merits. It is waived if presented in a-general answer to the merits. Bates, Fed. Eq. Procedure, § 254; Railroad Co. v. Harris, 12 Wall. 65, 20 L. Ed. 354; Spencer v. Lapsley, 20 How. 264, 15 L. Ed. 902; Sheppard v. Graves, 14 How. 512, 14 L. [571] Ed. 521. Instead of interposing a plea in abatement, the appellant herein filed an answer to the merits and therein set up, not as a plea in abatement, but as a plea in bar, the agreement between the appellee and Thayer and Wilkins, claiming that, as the result thereof, the debts sought to be collected were not his debts, and that the mortgages had ceased to be liens on the mortgaged property. 'I he decree of the Circuit Court is affirmed.