Massachusetts Supreme Judicial Court, 1878

Fisher v. Fraprie

Massachusetts Supreme Judicial Court · Decided October 22, 1878

125 Mass. 472; 1878 Mass. LEXIS 105

Cases that cite this one

5 later published cases cite this decision.

Krinsky v. Stevens Coal Sales Co. (Mass. 1941)
Shapiro v. Goldman (Mass. 1925)
Parks v. Smith (Mass. 1891)
Larned v. Griffin (U.S. Circuit Court for the District of Massachusetts 1882)
O'Loughlin v. Bird (Mass. 1880)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion 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. Gilles, 113 Mass. 34. The plaintiff has therefore no just ground of exception to the order of the judge allowing a trial on the answer to the merits. Exceptions overruled.

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