Cannon v. McManus
Supreme Court of Missouri
Error to Law Commissioner’s Court. Cannon brought .a suit by attachment against McManus. McManus filed an answer, denying the truth of the affidavit on which the attachment issued, and also the indebtedness charged in the petition.
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Error to Law Commissioner’s Court. Cannon brought .a suit by attachment against McManus. McManus filed an answer, denying the truth of the affidavit on which the attachment issued, and also the indebtedness charged in the petition. At the trial, the court refused to try. any issue but that made on the indebtedness, and excluded.all evidence offered to disprove the affidavit, holding that the plea, in abatement was waived by the plea in bar ; to which, the defendant excepted.. There.was a judgment for, plaintiff, and defendant brings the case here by writ of error, 1. The fifteenth section of…
1Opinion of the CourtRyland, Judge
1. From the foregoing statement, the question arises, whether a defendant, against whom an attachment has issued, can, in the same answer, respond to the merits of the plaintiff’s petition and deny the facts stated in the affidavitthus making his answer operate in bar to the action and in abatement to the action at the same time. We think not. The defendant must, if he intends to put the truth of the plaintiff’s affidavit in issue, do so by his answer, or by his plea in the nature of a plea in abatement. He cannot be allowed to answer to the action upon the merits, and at the same time make…
2Cited by15 opinions
- Little v. HarringtonSupreme Court of Missouri · 1880
- Norvell v. PorterSupreme Court of Missouri · 1876
- Rippstein v. St. Louis Mutual Life InsuranceSupreme Court of Missouri · 1874
- Burnett v. McClueySupreme Court of Missouri · 1887
- Coombs Commission Co. v. BlockSupreme Court of Missouri · 1895
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