
    Babcock, Gardner & Co. v. Scott & Robinson.
    The refusal of a court to grant an application for a continuance in a case is not an error, for which a judgment subsequently rendered may be reversed.
    Pleas in abatement, as they prevent an examination into the merits of a case, and defeat the writ, but do not bar the right of action, are unfavorably regarded by the courts; wherefore objections taken by demurrer, either in form or substance, to such' pleas, will be sustained.
    Defence, either half or whole, is required to be made before plea entered. All pleas which acknowledge the jurisdiction of the court require full defence.
    BABCOCK, Gardner & Co. commenced an action upon the case in assumpsit in the circuit court of Yazoo county, against Thomas S. Scott and J. Robinson. To the declaration the defendant, Scott, pleaded non assumpsit, upon which there was issue. The defendant, Robinson, pleaded misnomer in abatement, and by the said plea prayed judgment of the declaration, and that the same may be quashed; to which the plaintiffs demurred; but the demurrer being defective, the plaintiffs moved to amend their demurrer, which was allowed.
    The plaintiffs then filed their amended demurrer to the plea in abatement, and assigned for causes of demurrer the following:
    1. There is no defence made.
    2. The prayer of judgment is improper.
    The defendant, Robinson, joined in demurrer; the court sustained the demurrer; a jury was empannelled, who found the issue joined in favor of the plaintiffs.
    The court thereupon rendered judgment upon the verdict and upon the demurrer, for the plaintiffs against both defendants. Before the jury were re-empannelled, the defendants objected to a trial at that time, and claimed a continuance because the plaintiffs had amended their demurrer. The court overruled the application for a continuance and compelled the defendants to go to trial, to which the defendants excepted, and prosecuted this writ of error.
    
      Fitch, for plaintiff in error.
    Wilkerson, contra.
    
   Mr. Justice Smith

delivered the opinion of the court.

I am not aware that it has ever been holden, that a refusal of a judge to grant a continuance is error. This power is committed solely to the discretion of the judge. See Woods & Broms v. Young, 4 Cranch, 237; Marine Insurance Company of Alexandria v. Hodgson, 6 Cranch, 206.

The defect pleaded in abatement by Robinson, existed in the declaration, though not apparent upon the face of it. The prayer of judgment, therefore, is proper, and no valid objection exists to it on that ground.

But the party pleading in abatement has not made defence. This is strictly a technical objection, and founded upon the artificial reasons which sustain the science of special pleading. De-fence, either half or whole, is required to be made before plea entered; which is a resistance or denial of the demand of the writ.

' .In all pleas which admit the jurisdiction of the court, to which class the one under consideration belongs, full defence is required. See Gould’s Pleadings, c. ii, ss. 6 and 10. And so long as the principles of special pleading are pursued, the defect here pointed out will form ground of special demurrer.

Pleas in abatement, as they prevent an examination into the merits of a cause, and defeat the writ, but do not bar the right of action, are unfavorably regarded by the courts. 2 Saunders, 209; 13 Gould’s Pleadings, c. iii, s. 58. And any objections to form or substance will be entertained against them. I am, therefore, clear that the court, in sustaining the demurrer for the first cause assigned, did not err.

Judgment must be affirmed.  