Fisher v. Fraprie
Massachusetts Supreme Judicial Court
Contract on an account annexed for use and occupation. The defendant filed the following: “ Answer in abatement and answer.
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Contract on an account annexed for use and occupation. The defendant filed the following: “ Answer in abatement and answer. And now comes Stephen T. Fraprie and answers in abatement the nonjoinder of Thomas Fairbanks, John Gifford, alias Gilfoy, James Cameron, Smith K. Law, William Greene and Joseph Eaton, all of Fall River in said county, who are jointly liable with the defendant in the cause of action declared on, and ought to be joined with him as parties defendant in said case, and this he is ready to prove; and, in no ways departing from his said answer in abatement, or waiving the same,…
1Opinion of the Court
By the Court.
The answer filed by the defendant contained both an answer in abatement and an answer to the merits; and the validity of either was not affected by their being pleaded together. Claflin v. Thayer, 13 Gray, 459. The decision in the Superior Court, whether in law or fact, upon the answer in abatement, was indeed final. Gen. Sts. c. 115, § 7. Wildes v *473Marshall, 117 Mass. 311. But if the answer in abatement was overruled as matter of law, the defendant had the right to answer over; if as matter of fact, he might do so at the discretion of the judge. Gen. Sts. c. 129, § 40. Young v.…
2Cases cited2 opinions
- Young v. GillesMassachusetts Supreme Judicial Court · 1873
- Wildes v. MarshallMassachusetts Supreme Judicial Court · 1875
3Cited by6 opinions
- Smith v. Western Pacific Railway Co.New York Court of Appeals · 1911
- Larned v. GriffinU.S. Circuit Court for the District of Massachusetts · 1882
- Krinsky v. Stevens Coal Sales Co.Massachusetts Supreme Judicial Court · 1941
- O'Loughlin v. BirdMassachusetts Supreme Judicial Court · 1880
- Parks v. SmithMassachusetts Supreme Judicial Court · 1891
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