
    David Carroll, Adm'r. vs. Phoenix Indemnity Co.
    No. 74344
    April 19, 1928.
    For plaintiff: Greene, Kennedy & Greene.
    For defendant: Hjenshaw, Linde-muth & Baker.
   TANNER, P. J.

This is a case where action was brought against a defendant who was alleged to be guilty of negligence and the writ was returned non est inventus. The present action against the insurance company was then brought under the satute. The insurance company has pleaded in abatement that at the time of the service of the writ against him, Eugene M. Weeden, the defendant in the original suit, said Weeden was and still is a resident at 113 Broadway in the City of Newport, and that a sheriff of the County of Newport could have served the writ upon him and can still serve the writ upon him, and that the said return of non est inventus was illegal. This case was heard upon motion to strike out the plea.

We are inclined to think that the return of non est inventus is proper where the writ can not be served by an officer of the county in which the writ was issued.

See Call vs. Sagger, 8 Mass. 423.

The plea is also demurred to because the record shows that the demurrer was filed and heard before the plea in abatement was filed. According to the weight of authority, a plea in abatement can not be filed after a demurrer has been filed.

1st Eney. PI. & Pr. 36.

The motion is therefore sustained.  