Tooms v. Randall
Before: Heydenfeldt
Synopsis
Where a motion was made to change the venue, on the ground that neither of the parties resided in the district; where no objection was made in the answer, and after nearly six months had elapsed before the objection was taken: Held, that the motion came too late, and was properly rejected.
Matter in abatement, or which was such at common law (as the motion in this case), must be set up in the answer, and with such particularity as to exclude every conclusion to the contrary.
Heydenfeldt, Justice, delivered the opinion of the court. Wells, Justice, concurred.
This is an appeal from the refusal of the District Court to change the venue. The application was made on the ground that neither of the parties reside in the district.
[440]The motion was properly refused. No objection of the kind was made in the answer, and after it was filed, nearly six months were permitted to elapse before it was taken.
By the common law practice such an objection could only be taken by plea in abatement, before filing a plea in bar, and the latter is always a waiver of all matter in abatement.
The same strictness must be adopted here, relatively to our form of practice, because the principle prevails here, as well as elsewhere, that the law abhors a dilatory plea. Matter in abatement, or what was such at common law, must therefore be set up in- the answer, and with such particularity as to exclude every conclusion to the contrary.
Order affirmed.
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