Bendheim v. Harris

This case is before the court on defendant Ayerst’s three-pronged preliminary attack on the validity of the plaintiff’s amended motion for judgment as to it, in the nomenclature of (1) a plea in abatement, (2) a motion to quash, and (3) a demurrer.

Ayerst’s affidavit establishes a flaw in the plaintiff’s styling of the amended motion for judgment; namely, that instead of being Ayerst Laboratories, Inc., Division of American Home Products Corporation, it should have been Ayerst Laboratories, Inc. To determine whether plaintiff’s flaw is fatal when attacked by a plea in abatement and a demurrer, consideration must be given to §§ 8-97 and 8-119 of the Code of Virginia, 1950, as amended. A reading of these sections in conjunction with the case of Jacobson v. Southern Biscuit Co., 198 Va. 813 (1957), convinces me that plaintiff's defect is correctable by amendment. Leave is accordingly granted to the plaintiff to file an amended motion for judgment within fifteen days in which Ayerst is styled correctly as the defendant and service of process is effected on the Secretary of the Commonwealth.

Compliance by the plaintiff with this ruling will be dispositive of the demurrer and the plea in abatement.

Defendant’s motion to quash seems to basically attack plaintiff's right to sue it in Virginia. At this stage of the proceedings it appears that existing allegations *401in the amended motion for judgment make Ayerst amenable to process under § 8-81.2 of the Code of Virginia (1950) as amended; and until evidence is developed either in support or against these allegations, any ruling by the court would be premature.

After the amended motion for judgment is filed and served on the defendant, this point should be reraised in an appropriate pleading; and after evidence in regard thereto is fully developed, the court will either grant counsel a further hearing or will rule on whatever evidence comes before the court in the form of depositions and affidavits that would allow disposition of the point.