Baker v. Baker

121 Ind. App. 564 (1951)

100 N.E.2d 900

BAKER v. BAKER.

No. 18,218.

Court of Appeals of Indiana.

Filed October 5, 1951.

T. Ernest Maholm, of Indianapolis, for appellant.

Lawrence C. Ammon, of Indianapolis, for appellee.

ROYSE, J.

Appellant brought this action May 1, 1951 for divorce against appellee in the Superior Court of *565 Marion County, Room No. 2. To the complaint appellee filed a pleading which she denominated a "Motion to Abate and Dismiss Plaintiff's Action," in which she alleged that the parties hereto lived and cohabited together as husband and wife for two or three days after this action was commenced. Appellant filed an answer in denial. On May 9, 1951 the Court heard evidence on the issues presented by appellee's motion. On May 16, 1951 it entered judgment abating this action. From that judgment appellant has brought this appeal.

The appellee petitioned this Court for an extension of time to file her brief herein. This petition was granted. However, appellee did not file a brief. Therefore, if appellant has made a prima facie showing of error we may reverse.

In our opinion appellee's motion was a plea in bar and not a plea in abatement. It, in effect, pleaded condonation as a defense to appellant's action. The issues presented by appellee's motion should have been heard and determined when the cause was tried on the question presented by the complaint for divorce. Such trial could not be held until sixty days after the issuance of summons. Sec. 2-1905, Burns' 1946 Replacement (1951 Supp.).

Therefore the judgment of the Superior Court of Marion County, Room No. 2, is reversed, with instructions to set aside its judgment and for further proceedings in accord with the views expressed herein.

NOTE. Reported in 100 N.E.2d 900.