Elliott v. Kuzek
District Court, D. Alaska
Motion to strike the answering plea of abatement. The grounds are: First, that said paragraphs together constitute a plea in abatement, and set forth an inconsistent defense with the plea to the merits previously therein pleaded; second, that the said paragraphs, as a whole, are sham, irrelevant, and frivolous. The first ground need only now be considered.
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Motion to strike the answering plea of abatement. The grounds are: First, that said paragraphs together constitute a plea in abatement, and set forth an inconsistent defense with the plea to the merits previously therein pleaded; second, that the said paragraphs, as a whole, are sham, irrelevant, and frivolous. The first ground need only now be considered. The action is upon an injunction bond, and is to recover damages, not exceeding the penalty of the bond, for the wrongful issuing of an injunction by said Stanley Kuzelc, one of the defendants herein, in a former action in this court…
1Opinion of the Court
MOORE, District Judge.
Section 64 of the Civil Code of Procedure for Alaska provides that “the defendant may set forth by answer as many defenses [and counterclaims] as he may have.” This section of the statute, being in totidem verbis with the Oregon statute, has received judicial construction by *589the Supreme Court of Oregon in Hopwood v. Patterson, 2 Or. 50. The court in that case says:
“Answers in the nature of pleas in abatement are dilatory, and create issues which cannot properly be tried with issues on the merits. Issues on dilatory pleas should always be disposed of before issues on the…
2Cases cited10 opinions
- Hovey v. McDonaldSupreme Court of the United States · 1883
- BUTCHERS'BENEVOLENT ASSOCIATION v. Crescent City Live-Stock Landing and Slaughter-House Co.Supreme Court of the United States · 1870
- Leonard v. Ozark Land Co.Supreme Court of the United States · 1885
- Knox County v. HarshmanSupreme Court of the United States · 1889
- Knapp v. . RocheNew York Court of Appeals · 1880
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3Cited by1 opinion
- Powers v. Fidelity & Deposit Co.Superior Court of Delaware · 1945