McPeake v. Colley

Eberhardt, Judge.

Although appellant cites several federal cases holding that a plea in abatement is not a proper subject matter for summary judgment (Heyward v. Public Housing Administration, 238 F2d 689; Zeigler v. Akin, 261 F2d 88; Dredge Corp. v. Penny, 338 F2d 456; Danisch v. Guardian Life Ins. Co. of America, 151 FSupp. 17; and 6 Moore’s Federal Practice (2d Ed.) Par. 56.03, p. 2052), it appears that the defense of. former suit pending, as we have it, is not recognized in the federal courts, or in the Federal Rules of Civil Procedure. For this reason we do not regard the federal cases as…