Mayes v. United Garment Workers , 320 Mo. 10 ( 1928 )

I do not concur in that paragraph of the opinion of my learned associate holding that the plea in abatement can be considered in the absence of a bill of exceptions preserving the same. It is not a correct statement of the character of this plea to say that: "it is one of the recognized pleadings in a case in the nature of an answer." It possesses none of the characteristics of an answer. To constitute the plea one of the "recognized pleadings in a case," within the meaning of the rules of the common law and the code, it would be necessary for it to be based, as in the case of a demurrer, exclusively upon matters appearing of record, which would render it determinable upon a bare inspection of the record. If the plea possessed these characteristics it would intrinsically become a part of the record proper and require no bill of exceptions to entitle it to a review. It does not possess them, however, and is classed generally as a collateral motion, which is said to be one, "not in due course," but which is directed to matters not of record, although in its discussion and determination it may be legitimately connected with the record. [Sec. 191, p. 163, Elliott's Appellate Procedure.]

A plea in abatement, therefore, in a limited way, may be said to be substantially a plea in bar or a dilatory plea. [Allin v. Conn. River Lumber Co., 150 Mass. 560.] No authority that I am aware of holds to the contrary. Thus classified, to entitle it to a review in an appellate court, it should be incorporated in the bill of exceptions. [State v. Judge, 285 S.W. (Mo.) 718, 720.]

We have repeatedly held that the record proper on appeal consists of the petition, the summons and all subsequent pleadings, including the verdict, judgment and all orders emanating from the court and entered upon its records. As we have shown, a plea in abatement separately made cannot be considered as "a subsequent pleading" and hence a part of the record proper. I am, therefore, of the opinion that the holding to the contrary is error.