National Liberty Ins. Co. of America v. Silva

In argument upon rehearing it was agreed by counsel that no demurrer or answer was filed to the plea in abatement; that no evidence was taken thereon; that the decision of the court was rendered after an argument upon facts of which the court and the parties had knowledge; that the facts stated in appellants' brief, and which we have quoted in our original opinion, are not all of the facts upon which the court rendered his decision.

In our disposition of the case we resorted to the opinion of the trial court to determine the theory upon which the cases were dismissed because it appeared from the record that no issue either of law or fact had been made on the plea in abatement. This was the only source open to us for information upon which to determine that question. Of course this could be done only under exceptional circumstances, unnecessary to mention here.

We have concluded that the question involved is too important to rest upon the present record. A pleading responsive to the plea in abatement should be filed and the issues determined. We do not feel that we should resolve the decision in favor of a judgment unless there was evidence taken or facts stipulated that will support it.

The order of this court will not be disturbed.

It is so ordered.

BICKLEY, C.J., and ZINN and SADLER, JJ., concur.

MABRY, J., did not participate.