Majority
p. 463Adolph Bandman v. Joseph R. Gamble and another.
Headnote
An objection, that there is a variance between the cause of action stated in the summons, issued from the Marine or District Courts, and the complaint, is matter in abatement, and is waived by pleading to the merits.This action was commenced in the Marine Court. The summons was in form “ for a money demand on contract.” The complaint charged the defendant with a wrongful taking and detention of personal property, and upon the latter cause of action the court below gave judgment. The defendant
p. 464
pleaded to the merits; and afterwards, without withdrawing his answer, moved to dismiss the complaint, upon the ground of variance from the cause of action stated in the summons.
John U. McCunn and James Moncrief, for the defendants.
Henry V. Vultee, for the plaintiff.
By the Court.
It was too late, after an answer to the merits, to object that there was a variance between the summons and the complaint. That variance was a matter to be urged as ground of objection to the complaint, (as an abatement of the court,) and such matters are waived by pleading to the merits.
Judgment affirmed.