'dissenting. This court considered together the two writs of error in the same case. In the first bill of exceptions error was assigned upon the ruling on the plea in abatement. After the trial judge had stricken the plea in abatement the case proceeded *743to trial, and -the trial resulted in a judgment in 'favor of'tlie plaintiff, and the defendants filed their bill of exceptions, complaining, among other things, of the overruling of their motion for new trial. A majority of this court is of the opinion that the judge erred in striking the plea in abatement, and I concur in this judgment. This ruling disposes of the first of the writs of error. I can not agree to the conditional judgment of affirmance rendered upon the second writ of error. I think it perfectly, well settled that since the trial court erred in striking the plea in abatement, all subsequent proceedings in the trial were nugatory, and that the second bill of exceptions should be dismissed as having been prematurely brought. In my opinion, nothing is better settled than that where a plea in abatement which would entirely bar a recovery has been filed, the issue therein raised must be legally determined before there can be an adjudication upon the merits of the case, unless, under the peculiar circumstances of the particular case, the plea in bar and the issue upon the merits can legally be tried together.
In a ease such as the one before us this court can not know what would have been the result if the issue formed by the plea in abatement had been tried. If upon the plea in abatement the defendant had prevailed, the result would have been that the suit would have ended. Since we can not know what the result may be in the hearing which we now order upon the plea in abatement, we should not, in my opinion, prejudge, and perhaps prejudice, the rights of the plaintiffs in error in the second bill of exceptions, by denying to them what I consider they were legally entitled to—a trial upon the merits after a legal adjudication upon the plea which we hold should have been submitted to a jury.