Young v. Citizens' Bank

Stewart, J., delivered tbe opinion of tbe Court. Tbe motion of tbe appellants to abate tbe suit, and all tbe proceedings, was made at the November Term, 1866, of the Court below. From tbe refusal of which motion, this appeal has been taken. To sustain their motion, tbe appellants assigned two reasons: 1st.

Because tbe original writ issued against David Young when be was dead. 2d. Because tbe appearance of tbe appellants as the administrators, by attorney, was improperly entered. Tbe record shows that tbe Sheriff’s return of mortuus est was made at the April Term of tbe Court, in the year 1864, at which term, tbe appearance of tbe appellants by attorney was entered, and they had leave to imparl to tbe following November Term, and like leave to the April and November Terms, 1865. At tbe November Term, 1865, the appellants appeared by an additional attorney, and then by both attorneys, filed tbe plea of plene ad ministravit, and took leave to amend, and proceeded under the leave to file additional pleas in bar.

Tbe case was then continued until tbe November Term, 1866, when the motion now in question was interposed. From the proceedings thus disclosed by the record, it is manifest, that after tbe appearance of tbe appellants by attorney, they bad tbe benefit of the successive imparl ⁶⁸ anees, — they filed the plea of plene administravit by two attorneys, — they had leave to amend, and filed additional pleas in bar. If there had been error in the original process affording matter for plea in abatement, or if the first appearance of the appellants by attorney were unauthorized, there was certainly ample opportunity afforded to have had the same corrected at an earlier stage of the proceedings. There is nothing in the record before us to show that the appearance by the second attorney, and the pleadings by the two attorneys were improvident and unauthorized.

After the imparlance and the plea in bar, with the leave to amend, and the filing of additional pleas in bar, the appellants cannot be permitted, upon any sound rule or principle of practice, to have the suit abated for either of the reasons assigned. Such an indulgence would be utterly inconsistent with all the well-established safeguards governing the progress of a suit. “ A plea in abatement cannot be put in after a general imparlance, nor can it be pleaded after a plea in bar, unless the matter has arisen since the plea in bar; in which case it may, provided it be done the first opportunity that is presented; for a plea in bar waives only matter in abatement then existing.” Chapman’s Adm’r vs. Davis’ Exc’r, 4 Gill, 176 ; Eschbach vs. Bayley, 28 Md., 492 . Parties interested in judicial proceedings must exercise due vigilance, and take the earliest steps to avoid the. effect of irregularity, otherwise they virtually waive the same and are concluded. “ It is the universal practice of the Courts, that the application to set aside proceedings for irregularity should be made as early as possible, or, as it is said in the first instance — if the party overlook it, and take subsequent steps in the cause, he cannot afterwards revert back and object to it.” Tidd’s Practice, 182. ⁶⁹ This rule applies throughout the entire proceedings. There were laches on the part of the appellants in permitting the imparlances, pleas in bar, and appearance by additional attorney, without presenting their motion for abatement.

There was no allegation that any fraud had been perpetrated upon them, nor does it appear that ordinary diligence