M'Guire v. Peck

Martin, J., delivered the opinion of the court. The defendant and appellant has placed his case before us, on a bill of exceptions to the opinion of the court, in ordering the part of his answer which relates to the amicable demand and the pre-maturity of the suit to be stricken out, on the ground that the exception was a dilatory one, and could not be pleaded in an answer to the merits, or after a judgment by default. The record does not show that any judgment by default had been taken, and it appears that the exception was taken in nm{ne Ufa being placed in the beginning of his answer. ... , , . . . . The court, m our opinion, erred in ordering this part or the answer to be stricken out. *189 It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that the parts of the answer stricken out be reinstated, and the case remanded for further proceedings, according to law; the plaintiff and appellee paying the costs of the appeal.