ABATEMENT OF AN ACTION
An entire overthrow or destruction of a suit so that it is quashed and ended.
The purpose of abatement is to save the time
and expense of a trial when the plaintiff ’s suit
cannot be maintained in the form originally
presented. After an action abates, the plaintiff is
ordinarily given an opportunity to correct errors
in his or her PLEADING. If the plaintiff still is
unable to allege the facts necessary to state a
legal CAUSE OF ACTION, then the action is termi-
nated.
Not every possible reason for dissatisfaction
with another person can be heard by a court.
When the old COMMON LAW form of action gov-
erned the procedure followed by courts (as
opposed to state and federal rules of procedure,
which now do), only legal wrongs that fit exactly
into one of the allowed categories could be
pleaded in court. If the defendant believed that
the plaintiff ’s complaint did not fit one of these
forms, the defendant could respond with a plea
in abatement. A plea in abatement was called a
dilatory plea because it delayed the time when
the court would reach the merits of the plain-
tiff ’s claim, if ever.
The rigid formality of common law pleading
became less satisfactory as legal disputes became
more complicated. It has been replaced in each
state by a procedure that allows the plaintiff to
plead facts showing his or her right to legal
relief.Modern systems of pleading retain a right
for the defendant to seek abatement of the
action when the plaintiff is not entitled to be in
court. They allow a defendant to object to the
court’s jurisdiction, the venue of the trial, the
sufficiency of process, or of the SERVICE OF
PROCESS, the legal sufficiency of the plaintiff ’s
claim, or the failure to include someone who
must be a party. A plea in abatement is made
either in the defendant’s answer or by motion
and order—that is, an application to the court
for relief and an order that can grant it. Abatement
is usually granted in the form of a dismissal of cause of action, and now the term dismissal
is used more often than the term abatement
for this procedure.
Today, the word abatement is most often
used for the termination of a lawsuit because of
the death of a party. Under the common law, a
lawsuit abated automatically whenever a party
died. This rule was considered a part of the substance
of the law involved and was not merely a
question of procedure. Whether the cause of
action abated depended on whether or not the
lawsuit was considered personal to the parties.
For example, contract and property cases were
thought to involve issues separate from the parties
themselves. They were not personal and did
not necessarily abate on the death of a party.
Personal injury cases were considered personal,
however, and did abate at death. These included
claims not only for physical assault or negligent
injuries inflicted on the body, but also for other
injuries to the person—such as LIBEL, slander,
and MALICIOUS PROSECUTION.
Today there are statutes that permit the
revival of an action that was pending when a
party died. An executor or administrator is substituted
for the deceased party and the lawsuit
continues. A lawsuit may not be revived unless
the underlying cause of action, the ground for
the suit, continues to have a legal existence after
the party’s death. Revival statutes vary from state
to state, but today most lawsuits do not abate.
This general rule does not apply to matrimonial
actions. A lawsuit for DIVORCE or separation
is considered entirely personal and
therefore cannot be maintained after the death
of a party.Different states do make exceptions to
this rule in order to settle certain questions of
property ownership. An action for the ANNULMENT
of a marriage after the death of an innocent
spouse may be revived by the deceased
spouse’s PERSONAL REPRESENTATIVE if it is clear
that the marriage was induced by FRAUD and the
perpetrator of the fraud would inherit property
to which he or she would otherwise not be entitled.
