Southey v. Dowling
Supreme Court of Connecticut
Action to recover a balance claimed to be due for stone furnished, brought to the Superior Court in Fairfield County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants for alleged errors in the rulings of the court. The complaint contained two counts.
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Action to recover a balance claimed to be due for stone furnished, brought to the Superior Court in Fairfield County and tried to the court, George W. Wheeler, J.; facts found and judgment rendered for the plaintiffs, and appeal by the defendants for alleged errors in the rulings of the court. The complaint contained two counts. The first count alleged in substance: (1) that in May, 1895, the plaintiffs contracted with the defendants to furnish them with stone for use at Portchester, New York, as set forth in the bill of particulars filed under this count; (2) that the defendants agreed to…
1Opinion of the CourtTour arce, J.
The question upon this appeal is whether, under the pleadings in this case, the defendants could avail themselves of the fact that the action was prematurely brought. At common law, matter of this kind, not appearing upon tire face of the pleadings, was clearly matter in abatement. Matter which merely defeats the present proceeding and does not show that the plaintiff is forever con-*157eluded, should in general he pleaded in abatement. 1 Chitty’s PL 446; 1 Swift’s Dig. s. p. 606. The proceedings will abate “ if it appear that the suit was commenced before the cause of action had accrued.” 1…
2Cases cited4 opinions
- Collette v. WeedWisconsin Supreme Court · 1887
- Goodrich v. Atlanta National Building & Loan Ass'nSupreme Court of Georgia · 1895
- Elder v. RourkeOregon Supreme Court · 1895
- Iselin v. SimonSupreme Court of Minnesota · 1895
3Cited by4 opinions
- Smith v. JewellSupreme Court of Connecticut · 1899
- Libretto v. SerifiniSupreme Court of Connecticut · 1918
- Walsh v. KrevolinConnecticut Superior Court · 1940
- Walsh v. KrevolinConnecticut Superior Court · 1940