ABATEMENT AND REVIVAL - Black's Law Dictionary

What is ABATEMENT AND REVIVAL? Definition of ABATEMENT AND REVIVAL in Black's Law Dictionary

Actions at Law
As used in reference to actions at law, word abate means that action is utterly dead and can- not be revived except by commencing a new ac- tion. First Nat. Bank v. Board of Sup'rs of Harri- son County, 221 Iowa 348, 264 N.W. 281, 106 A.L.R. 566.

The overthrow of an action caused by the de- fendant's pleading some matter of fact tending to impeach the correctness of the writ or declaration, which defeats the action for the present, but does not debar the plaintiff from recommencing it in a better way. 3 Bla. Comm. 301; 1 Chit. Pl. (6th Lond. Ed.) 446; Guild v. Richardson, 6 Pick. ( Mass.) 370; Wirtele v. Grand Lodge A. 0. U. W., 111 Neb. 302, 196 N.W. 510. See Plea in Abate- ment.
To put a final end to suit, Dodge v. Superior Court in and for Los Angeles County, 139 Cal.App. 178, 33 P.2d 695, 696; overthrow of pending action apart from cause of action, Burnand v. Irigoyen, 56 Cal.App.2d 624, 133 P.2d
3, 6.

On plaintiff's death, Piukkula v. Pillsbury Astoria Flouring Mills Co., 150 Or. 304, 44 P.2d 162, 99 A.L.R. 259.
Mere lapse of time between the death of a party and the taking of necessary steps to continue the action by or against the heir or personal representative does not work an abatement, Whaley v. Slater, 202 S.C. 182, 24 S.E.2d 266, 267.

Cause of Action
Destruction of cause of action. In re Thomas- son, Mo., 159 S.W.2d 626, 628.

Chancery Practice It differs from an abatement at law in this: that in the latter the action is entirely dead and cannot be revived; but in the former the right to proceed is merely suspended, and may be revived;

F. A. Mfg. Co. v. Hayden & Clemons, C.C.A.Mass., 273 F. 374; Mutual Ben. Health & Accident Ass'n v. Teal, D.C.S.C., 34 F.Supp. 714, 716.

In England, declinatory pleas to the jurisdiction and dilatory to the persons were (prior to the judicature act) sometimes, by analogy to common law, termed "pleas In abatement."

Declinatory and dilatory pleas, see Story, Eq. Pl. § 708. Death of one of parties, Geiger v. Merle, 360 Ill. 497, 196
N.E. 497, 502. Want of proper parties, 2 Tidd Pr. 932;

Story, Eq.P1. § 354; Witt v. Ellis, 2 Cold., Tenn., 38; peti- tion for widow's allowance, In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60, 62, 144 A.L.R. 264.

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