FORMER SUIT PENDING. 1. General Rule, etc., 549. 2. The Action Must be Prior, 550. 5. It Must be Capable of Being Made 6. It Must be Between the Same Parties, 552. 7. It Must be for the Same Cause and Relief, 552. [Courts, 553. 8. Suits in State and National 9. Suit in Another State, 554. 10. Suit in Foreign State, 554. II. Actions at Law and Equity, 554. 12. Pendency of an Appeal, 555. 13. Pendency Writ of Error, 555. 14. How Proven, 555. 1. General Rule, etc.-The general rule is that the pendency of an action commenced between the same parties, and for the same cause of action and relief, is ground for abatement of a subsequent suit. And it is a good plea, in abatement of an action of assumpsit, that the defendant had previously commenced a suit against the plaintiff, in which the matters mentioned in the plaintiff's declaration might be set off. But the fact that another action is pend ing between the parties, although founded on the same indebtedness or liability, does not abate an action of common-law cognizance, unless the prior action is also a common-law action of the same nature as the second one. While a double satisfaction is never allowed, concurrent and cumulative remedies are not forbidden.3 Thus, proceedings in rem and in personam to collect the same demand do not necessarily interfere until satisfaction is obtained in one. Nor do actions on a joint liability, and on a several liability, in respect to the same debt. Nor do proceedings 1. Humphries v. Dawson, 38 Ala. 199: Prosser v. Chapman, 29 Conn. 515; Rogers v. Haskins, 15 Ga. 276; McKinsey v. Anderson, 4 Dana (Ky.), 62; Tracy v. Reed, 4 Blackf. (Ind.) 56. The courts are of the opinion that, where it appears by inspection that the cause of action in the second suit is, in a material and substantial part, the same as in the first, although other causes of action are inserted in the second, it is, within the meaning of the rule of law of practice, an action instituted for the same cause of action, and is a good cause of abatement. Buffum v. Tilton, 17 Pick. (Mass.) 511. The ground upon which courts proceed, in abating a subsequent suit upon the ground of a pendency of a former suit between the same parties and for the same cause, is that the subsequent suit is unnecessary, and is therefore vexatious. But the modern practice is, not to infer this from the mere pendency of the prior suit, but to inquire into the actual circumstances of the two cases, and then determine as matter of fact whether the second suit is unnecessary. State v. Dougherty, 45 Mo. 294. If, at the commencement of an action, there was another action pending and undecided, brought by the same plaintiff against the same defendant, and for the same cause of action, the former must abate pending the latter. Fisk v. Atkinson (Cal. 1886), 10 Pac. Rep. 374. 2. Schenck v. Schenck, 10 N. J. Law, But see New England Screw Co. v. Bliven, 3 Blatchf. (U. S.) 240. 276. The pendency of another action in which the parties to the one at bar are defendants, and in which the plaintiff in the suit at bar might, by cross-petition, obtain the relief sought in his suit, is not a ground for abatement of the latter suit. Osborn v. Cloud, 23 Iowa, 104. Where two or more tribunals have concurrent jurisdiction over the same subject-matter and the parties, a suit com menced in any one of them may be pleaded in abatement to an action for the same cause in any other. Shelby v. Bacon, 10 How. (U. S.) 56. 3. People & Judge, etc., 27 Mich. 406. 4. Toby v. Brown, 6 Eng. 308; The Bengal, Swab.. 469; The John & Mary, 6 Eng. 471; Nelson v. Couch, 15 C. B. N. S. 99. 5. Sowter v. Dumston, 1 Man. & Ry. to forfeit shares, and actions for calls.1 Nor do proceedings in bankruptcy, or on a judge's order for payment,3 warrant staying a common-law action for the debt. Nor will proceedings other than in common-law courts, unless they are identical in scope with the common-law suit, warrant a common-law suit in staying a pending action." 5 2. The Action Must be Prior.-The fact that another action has been subsequently commenced, although between the same parties and for the same cause, is not a ground for abatement. When two suits are commenced at the same time, each one abates the other.S 508; Wise v. Prowse, 9 Price, 393: Henry v. Nash, 1 Exch. 826; Giles v. Tooth, 3 C. B. 665; Newton v. Belcher, 9 Q B. 612; Newton v. Liddiard, 9 Q. B. 616. 1. Great Northern R. Co. v. Kennedy, 4 Exch. 417. 2. Covington v. Hogarth, 7 M. & G. 1013. 3. Wade v. Simeon, I C. B. 610. 4. Ostell v. Le Page, 21 Eng. L. & Eq. 640; Miles . Inhabitants of Bristol, 3 B. & A. 945. 5. Dicas v. Jay, 6 Bing. 519; Foreman v. Jeyes, 5 B. & A. 835; Smidt v. Ogle, 6 Taunt. 74; Laughton v. Taylor, 6 M. & W. 695. 6. The Ann & Mary, 2 W. Rob. 189; Genl. Steam Navigation Co. v. Tonkin, 4 Moore, 341. See Granger v. Judge, etc., 27 Mich. 411, where these cases are all reviewed. Hence, a common law action to recover for services in fitting out a vessel for sea, and for wages as master of the voyage, is not abated by, nor should it be stayed on motion on account of the pendency of an action in rem in the district court of the United States, to enforce the payment of the same demand against the vessel. Granger v. Judge, etc., 27 Mich. 411. 7. Renner v. Marshall, I Wheat. (U. S.) 215: Buffum 7. Tilton, 17 Pick. (Mass.) 510; Webster v. Randall, 19 Pick. (Mass.) 13: Wood v. Lake, 13 Wis. 84; Nicholl v. Mason, 21 Wend. (N. Y.) 339. To defeat a plea in abatement resting on the pendency of another action of the same cause, commenced at the same time, the plaintiff may show that it was commenced on a subsequent day, notwithstanding both writs bear date the same day. Davis v. Dunklee, 9 N. H. 545. 8. Beach v. Norton. 8 Conn. 71; Davis v. Dunklee, 9 N. H. 545; Haight v. Halsey, 3 Wend. (N. Y.) 258; Morton v. Webb, 7 Vt. 124. It is immaterial whether the first suit is pending at the time of the defendant's was pleading in abatement of the second. If the first was pending when the second commenced, the latter may be abated, as being vexatus ab initio. And, on principle, it seems that this plea can never prevail, except in cases where the latter suit is vexatious. Hence, where it appears that the first action must have been ineffectual, the courts of Connecticut have often determined that its pendency shall not abate the second, because in such case the latter is not vexatious. This appears to be the sound and reasonable doctrine upon the subject, and will perhaps reconcile the apparent diversity of decisions in the courts of the different States and in England. When the plaintiff at the same time commences two suits in the same form, for the same cause of action, and causes the defendent to be arrested and held to bail in both, or his goods to be attached in both, it is at once apparent that his conduct is vexatious and oppressive, and a palpable abuse of process of the court, and justice forbids that he should derive any benefit from either of his suits. But where the record shows apparent good faith in the commencement of the second suit, and that the first was discontinued before the defendant is called upon to plead in the second, so that he is not unnecessarily harassed by the defence of the two suits for the same cause at the same time, the second suit cannot be deemed vexatious, and cannot therefore be abated by the pendency of the prior suit when it was commenced. On the contrary, to hold the second suit abatable for that cause, would be to make the law favor, rather than abhor, a multiplicity of suits, inasmuch as it would render another action necessary, when the plaintiff's claim was a meritorious one. In the present case it appears from the record, that on the same day the plaintiff commenced an action against the defendant by declaration, under the statute, and also sued out an attachment against his goods and chat 3. Suit Must be Still Pending. A second action will not be abated on the ground that a previous action has been brought for the same cause, where the first suit has been dismissed before the plea to the second was filed.1 But the fact that the first suit is dismissed after the plea of abatement has been interposed, will not prevent the abatement of the second suit, the first having been pending when the second was commenced.2 To maintain the defence of the pendency of another suit for the same cause of action, it must be affirmatively proved that the suit is still pending,3 and in the same State.1 4. The Suit Must be in a Competent Court-The pendency of a suit for the same cause of action in a court having no jurisdiction is not sufficient to abate a subsequent suit in a court that has rightful jurisdiction.5 5. The Suit Must be Capable of Being Made Effective. The general rule that the pendency of a former suit between the same parties, for the same thing, will abate a suit subsequently brought, tels; and that the declaration and attachment were both served on the same day. It being deemed impossible, and indeed, not being averred that both suits were commenced actually at the same time precisely, we cannot presume that the attachment suit was actually commenced first, but, nothing appearing in the record to the contrary, we may fairly infer that the suit by declaration was commenced first. Wales v. Jones, 1 Mich. 253. The pendency of two suits brought by one plaintiff against one defendant, for one cause at the same time, is cause for abating the second suit, without inquiry into the fact of actual vexatiousness and oppression; and notwithstanding the plaintiff, before commencing the second, gave the defendant a written notice that he had discontinued the first. Gramsby v. Ray, 52 N. H. 513. 1. Adams v. Gardner, 13 B. Mon. (Ky.) 197; Rogers v. Hoskins, 15 Ga. 270; Clifford v. Cony, 1 Mass. 495; Toland. Tichenor, 3 Rawl. (Pa.) 326; Harris v. Johnson, 65 N. Car. 478; Leavitt v. Mowe, 54 Md. 613. 2. Frog v. Long, 3 Dana (Ky.), 151. To same effect, see Parker z. Colcord. 2 N. H. 36; Hope v. Alley, 11 Tex. 259. A brought a suit in a justice's court against B, in which the latter was required under a statute to set off a certain claim or be forever precluded from maintaining an action therefor. B afterwards brought suit against A for said claim; but before an answer was filed in it, the suit instituted by A was erroneously dismissed, against his remonstrance. Held, that the The defendant, in a suit which has been dismissed at his own instance, cannot, by a motion to set aside the judgment, etc., keep the suit pending, so as to be an impediment in the way of a new suit in the same cause of action. Bailey v. Beemond, 7 Tex. 537. A plea in abatement, alleging the pendency of the prior proceedings for the same cause to a complaint made before a justice of the peace, charging defendant with being the father of an unborn child, will be disallowed as being too late after the defendant has made his defence before the justice and entered into the required recognizance. People v. Smith (March, 1887), 31 N. W. Rep. 354. 3. Phelps V. Winona, etc. (Minn. 1887), 35 N. W. Rep. 273; Craig v. Smith (Col. 1887), 15 Pac. Rep. 337. 4. Hadden v. St. Louis, etc., 57 How. Pr. (N. Y.) 390. 5. Rood v. Eslava, 17 Ala. 430. For the purpose of a plea of "another action pending," the fact that the court where the first action has been commenced has authority to try and determine actions of that character or class is sufficient to warrant the action being considered as depending therein, notwithstanding the existence of a question as to whether such court has acquired jurisdiction of the parties or not, or of the particular case, until there is a decision that it has not jurisdiction. Merriam v. Baker, 9 Minn. 40. does not prevail where it appears that the first suit must be ineffectual, or where the former suit is so defective that no judgment could be properly rendered thereon.2 6. The Suit Must be Between the Same Parties. To be a good ground for abatement of the suit upon the ground that there is a prior suit pending for the same cause, the parties to the two suits must be the same. But the fact that a suit is pending against a common carrier, for the value of property consumed in a warehouse, is no bar to a recovery from the warehousemen, in a suit previously commenced, of insurance money which they have received for the property. In an action against one obligor, pendency of a prior action against all the obligors is a good plea in abatement.5 7. The Suit Must be for the Same Cause and Relief.-To sustain a plea in abatement for the pendency of a prior action, the two suits must be of the same character, and the plaintiff must be the same. That the subject-matter is the same must appear of record. If the first action has not yet been entered, or if there is yet no declaration, and the writ does not show the cause of action, the ground of abatement is not made out; and a second 1. Therefore, where a writ of error was brought to reverse a judgment in which the errors assigned appeared in a bill of exceptions, and it was afterwards discovered that the court below had omitted to allow and sign the bill of exceptions, to reverse the same judgment, as stated in such writ of error, but, having materially altered it, had then allowed and signed; and therefore a recent writ of error was brought, the first being abandoned, including a transcript of such altered bill of exceptions to reverse the same judgment. It was held that these facts did not constitute a sufficient ground of abatement. Quinnebaug Bank v. Tarbox, 20 Conn. 510. 2. Reynolds v. Harris, 9 Cal. 338; Durand z. Carrington, I Root (Conn.), 353: Lougham v. Thomason, 5 Tex. 127. A plea in abatement, setting up the pendency of a suit for the same cause of action, will not be sustained if such suit was a nullity. Phillips v. Quick, 68 Ill. 324. 3. Adams v. Gardiner, 13 B. Mon. (Ky.) 197; Bennett v. Chase, 21 N. H. 576; Longham . Thomason, 5 Tex. 127. 4. Clark v. Wilder, 25 Pa. St. 314. An action on a sheriff's bond is not abated by the pendency of other suits on the same bond, brought on behalf of different parties and for distinct defaults. Treasurers v. Bates, 2 Bailey (S. C.), 362. Where an action is brought by one party on an official bond, pending an action on the same bond by another party, the The fact that the plaintiffs in two suits are different, is presumptively an objection to a plea of the pendency of the suit previously commenced. Smith v. Blatch ford, 2 Ind. 184. A plea of prior action pending, in order to suspend or abate the action to which it is pleaded, must show that the action pending is between the same parties and for the same cause as that involved in the action which is sought to be abated. Bryon v. School (Ind. 1887). 10 N. E. Rep. 107: Board v. R. R., 50 Ind. 85-117/ Merritt v. Richey, 100 Ind. 416. In Oregon, it has been held that it is not necessary that the parties be identical. Crane. Larsen (Oreg. 1887), 15✓ Pac. Rep. 326. The plea of pendency of a former action cannot be sustained where in the one case the action is against the firm on their joint indorsement, and in the other against a member, on a several liability, involving the firm in no liability. Blackburn 2. Watson, 85 Pa. St. 241. 6. Logs of Mahogany, 2 Sumn. (U. S.) 589; Davis v. Hunt, 2 Bailey (S. Car.), 412. 7. Parker v. Colcord, 2 N. H. 36; Coales v. McCamm, 2 Browne (Pa.), suit, for some of the same things sued for in a former action still pending, will not abate the other in whole or in part.1 A proceeding in rem, to enforce a mechanic's lien, cannot be pleaded in abatement of an action for the labor and materials.2 8. Suits in State and National Courts.-Where a State court has jurisdiction, a suit pending therein between the same parties and for the same cause will be a good plea in abatement for the same action in the United States courts and the District of 175; McCarney v. McCamp, I Ashm. (Pa.) 4; Com. v. Churchill, 5 Mass. 174. 1. Ballow v. Ballow, 26 Vt. 673. 2. Delahey v. Clement, 4 Ill. 201. Where an administrator sued as the representative of the wrong party, and was consequently compelled to bring a new action, the plea of the pendency of the prior action, pleaded in abatement of the new action, was not sustained. Cornelius v. Vanarsdellen, 3 Pa. St. 434. Where an action was brought by the plaintiff at common law, to recover damages occasioned by a dam belonging to the defendants, and subsequently a statutory proceeding was instituted by him against the same defendants to abate the dam, by indictment, a conviction therein, in which no demages were given by the jury, will not preclude further pursuit of the first action. Gould v. Langdon, 43 Pa. St. 365. Where two suits are pending against a defendant, for the same cause of action, he may, on the trial of the second suit, plead in abatement the first, and prove by oral testimony that it was for the same cause of action as that set forth in the second. Damon v. Denny (Conn. 1887), 7 Atl. Rep. 409. 3. Ex parte Balch, 3 McLean (U. S.), 221; White. Whitman, 1 Curt. (U. S.) 494; Greenwood v. Rector, I Hempst. (U. S.) 708; Smith v. Atlantic, etc., 22 N. H. 21. The courts of the United States have uniformly held, under the Constitution and acts of Congress, the judgments of the State courts as domestic judgments. and, consequently, as purporting upon their face absolute verity. In this respect, the same effect is given to them, or should be given to them, in every other State as in the one where the judgment was rendered. It is true an execution cannot be issued on the judgment of a sister State; but in every other respect the effect is the same. Where a court is called to act on a judgment in the State where it was originally entered, or in any other State, it will see if the court had jurisdiction of the matter, and also whether due notice was given to the party against whom judgment was rendered. Different views were entertained by some of the State courts, especially those of New York; but for some years past, the decisions of the supreme court of the United States in this respect has been generally followed by the State courts. That the pendency of a former suit, in a court having jurisdiction of the same, may be pleaded in abatement, is a principle well established. It is so held to prevent a multiplicity of suits being brought for the same cause. To tolerate the pendency of several suits at the same time, for the same cause, would be a reproach on the administration of justice: courts of justice were instituted to afford speedy and effectual remedies for the redress of wrongs, and not to afford a litigious person the means of oppression. The recovery of a judgment for the same cause of action in the State court closes the controversy and merges in the judgment the cause of action. And in this respect, the same doctrine is held in the courts of the United States, in regard to the judgment of a State court, as a judgment given by a United States court. The courts of the United States are not foreign to the States. They administer the laws of the State, following the established construction of its statutes by its own courts. And if this effect be given to the judgment of a State court, it would follow that the pendency of a suit in such court may be pleaded in an action for the same cause in the courts of the United States. There is no other mode by which a conflict of jurisdiction can be avoided. It may be laid down as a general rule of action for the Federal and State courts that, whichever shall first take jurisdiction of a case, the jurisdiction of the other may be defeated by a plea in abatement. Earl v. Raymond. 4 McLean (U. S.), 233. The doctrine in this case is, perhaps, a little shaken by Gordon v. Gilford, 99 U. S. 168. It has, however, been held that the pendency of a suit in the circuit court of |
