
    Blackman and another vs. Beha.
    The defendants, in an action of trespass before a justice of the peace, pleaded in abatement the defective service of the plaintiff's writ, to which plea the latter demurred. The court sustained the demurrer, and ordered the defendants to answer over, which they refused to do, whereupon judgment was rendered in favor of the plaintiff. The defendants then appealed from the judgment upon the demurrer to the superior court. Held, that such appeal did not vacate the final judgment of the justice, and that the superior court could take no cognizance of the case.
    This was an action of trespass vi et amis, brought by Alexander Beha against Isaac Blackman and Edwin Wooster, demanding fifty dollars damages.
    The suit was answerable before a justice of the peace, on the 4th day of August, 1855, and on that day the defendants appeared, and severally pleaded in abatement the defective service of the plaintiff’s writ. To these pleas the plaintiff demurred specially, on the ground that said pleas were not signed, either by the defendants or by their attorney. The court decided that said pleas were insufficient, ordered the defendants to answer over, and adjourned the cause to the 10th day of August, when the defendants severally pleaded anew such defective service, and moved that said latter pleas be placed on file and the plaintiff be required to make answer thereto. That motion was disallowed by the court, and the defendants were ordered to make further answer to the plaintiff’s declaration. This they neglected and refused to do, whereupon the court rendered judgment in favor of the plaintiff, for fifty dollars damages and costs. From the judgment of said court upon said pleas in abatement, and the answer thereto rendered on the 4th day of August, the defendants appealed to the superior court. Said superior court adjudged said pleas insufficient, and rendered judgment in favor of the plaintiff to recover his costs.
    The defendants thereupon filed a motion in error, and brought the case to this court.
    
      Wooster and Downs, in support of the motion.
    Cowles, contra.
   Ellsworth, J.

The judgment of the superior court must be reversed for the want of jurisdiction. The suit was commenced in a justice court, where a plea in abatement was filed, for defective service. The plea, not being signed, it was, for that cause, specially demurred to. Now, without meaning to decide whether the plea in abatement was good or bad, or whether the objection should not have been raised, on the reception of the plea, rather than by demurring to it, we are satisfied that there is error in this record.

The justice overruled the plea in abatement, and ordered further answer to be made, but the defendant, not complying with the order, he gave judgment for damages and costs, and that judgment is still in force and unappealed from; so that there are, at this time, two outstanding judgments for the same thing. An appeal, upon the plea in abatement only, did not vacate the final judgment. For this irregularity, we reverse the judgment of the superior court, leaving the defendant to any further relief, to which he may be entitled, according to law.

There is manifest error.

In this opinion, the other judges, Storrs and Hinman, concurred.

Judgment reversed.  