Beneke v. Tucker, 176 P. 183

Beneke v. Tucker

176 P. 183 | Or. | 1918

HARRIS, J.

1, 2. The demurrer was directed against the answer as a whole and the ruling of the court was evidently predicated upon the theory that the action pending on appeal in the Supreme Court of California barred the second defense relied upon by the defendant. The Code specifically provides.that “another action pending” is a ground for demurrer when a complaint discloses that another action is pending between the same parties for the same cause; and when not appearing upon the face of the complaint the objection may be taken by answer: Sections 68 and 71, L. O. L. These two sections of the Code are also applicable to suits in equity: Section 395, L. O. L.; Crane v. Larsen, 15 Or. 345 (15 Pac. 326). These statutory provisions do not, however, change the nature of the plea of “another action pending”; for, now as before, thé *234plea is in abatement of the action against which it is interposed: Hopgood v. Patterson, 2 Or. 50; 1 C. J. 48.

We shall assume for the purposes of the instant case that on the facts presented by the record before us the plea of “another action pending” will operate to produce whatever result would follow from the fact that an action in personam is pending in another state. In other words, we do not attempt to decide whether the plea of another action pending is affected by the circumstance that such other action is pending on appeal, (1 C. J. 98; Hutchings v. Royal Bakery, 66 Or. 301, 303 (131 Pac. 514, 132 Pac. 960, 134 Pac. 1033); or by the fact that the defendant in one action is a plaintiff in the other proceeding (1 C. J. 79, 82; Crane v. Larsen, 15 Or. 345, 349 (15 Pac. 326); or by the fact that the first proceeding is an action for a money judgment against the defendant while the second proceeding is a suit to foreclose a mortgage (1 C. J. 51, 82); nor do we decide whether the allegations found in the answer do or do not sufficiently plead “another action pending” (31 Cyc. 180; Crane v. Larsen, 15 Or. 345, 350 (15 Pac. 326); but we shall merely assume that it sufficiently appears from the answer that there is another action pending in the State of California between the same parties and for the same cause and that the litigants here are entitled to the uttermost benefits, whatever they may be, that flow from the fact that an action in personam is pending in another state. '

3. The rule that a subsequent action will be abated by the pendency of a prior action between the same parties for the same cause is generally confined to those cases where both actions are pending in courts of the same state. In the application of the doctrine of “another action pending” each state is regarded as foreign to every other state, and hence the pendency of *235an action in personam in one state cannot, as a rule, be made to abate an action subsequently commenced in another state between the same parties for the same cause, even though complete jurisdiction has been acquired by the court where the first action is pending (McNamara v. McAllister, 150 Iowa, 243 (130 N. W. 26, Ann. Cas. 1912D, 463, 34 L. R. A. (N. S.) 436); Douglass v. Phenix Ins. Co., 138 N. Y. 209 (33 N. E. 938, 34 Am. St. Rep. 448, 20 L. R. A. 118); Sloan v. McDowell, 75 N. C. 29; Hill v. Hill, 51 S. C. 134 (28 S. E. 309); 1 C. J. 84); and this rule is not affected by Codes which contain provisions like Sections 68 and 71, L. O. L., but such Code provisions are construed to apply only to suits and actions pending in the same state: Hill v. Hill, 51 S. C. 134 (28 S. E. 309); Sloan v. McDowell, 75 N. C. 29; Schmidt v. Posner, 130 Iowa, 347 (106 N. W. 760).

4. While the pendency of a prior action in another state does not entitle a party as a matter of right to an abatement of the second action, the court may in its discretion postpone the second action until after a decision of the first action: Schmidt v. Posner, 130 Iowa, 347 (106 N. W. 760); Douglass v. Phenix Ins. Co., 138 N. Y. 209 (33 N. E. 938, 34 Am. St. Rep. 448, 20 L. R. A. 118); Hill v. HUI, 51 S. C. 134 (28 S. E. 309); 1 C. J. 85; 1 R. C. L. 16. Regardless of whether or not an abatement completely terminates a proceeding or merely suspends it (1 C. J. 26, 27), the situation presented by the instant case is one where the defendant on the one hand could not insist as a matter of right that the demand of the plaintiffs for a money judgment and a decree of foreclosure be abated, and the plaintiffs on the other hand could not say that they were entitled as a matter of right to an abatement of the prayer of the defendant for a cancellation of the note *236and mortgage on account of a total want of consideration; but a continuance of tbe suit was tbe most that either the plaintiffs or the defendant could ask for; and the most that the court could do was merely to exercise its discretion and allow or refuse a continuance.

The second further and separate defense pleaded by the defendant is not, as claimed by the plaintiffs, predicated upon a rescission of the contract; but this defense proceeds upon-the theory that the defendant has affirmed the exchange and is seeking reimbursement by bringing about a cancellation of the note and mortgage on account of an alleged complete want of consideration, the defendant claiming that instead of the orange grove being worth $1,750 less than the Oregon property the California tract was in truth worth $2,500 more than the Portland lots.

The judgment and decree appealed from are reversed and the cause is remanded for such further proceedings as may not be inconsistent with this opinion.

Beversed and Bemanded.

McBride, C. J., and Burnett and Benson, JJ., concur.