77 Ind. App. 130 | Ind. Ct. App. | 1921
This action was originally brought October 14, 1919, before a justice of the peace in Harrison township, Vigo county, Indiana, for the recovery of possession of a certain house and lot in the city of Terre Haute, and for damage for the detention thereof. The cause was begun and tried before the justice of the peace after the “overruling” of appellant’s plea in abatement filed October 20, 1919, setting' up the pendency of another action between the same parties for possession of the same real estate. Judgment was rendered against appellant who appealed to the superior court of Vigo county No. 2, and later a change of venue was taken to the circuit court of Sullivan county where the cause was again tried, first, upon appellant’s said plea in abatement, to which appellee filed a reply March' 3 8, 1920, upon which issue a finding and judgment was rendered against appellant; and second, upon the issue raised by appellee’s complaint, resulting in a finding and judgment against appellant, from which this appeal is taken. The action is predicated upon a written lease and appellant is alleged to have unlawfully held possession of the house and lot described because of failure to pay rent in advance as provided in the terms of the lease. Upon the trial of the issues on the plea in abatement it was agreed that the averments in the plea and the reply thereto are true. These averments are in substance that before the bringing of this suit, to wit: On September 11, 1919, in the office of and before a justice of the peace of Harrison township, Vigo county, Indiana, appellee in - this action brought an action against appellant for possession of the same real estate
It clearly appears from the facts to which both parties have agreed that the first cause of action was pending at the time that the second was commenced, and that it was not dismissed until after the plea in abatement was filed. Appellee’s contention that it is sufficient to defeat a plea in abatement setting up a prior action, to show that such prior action has been dismissed before the trial of the plea is supported by the great weight of authorities outside of this state.
Buhman v. Nickels & Brown Bros. (1908), 7 Cal. App. 592, 95 Pac. 177, holds that in an action for unlawful detainer, where the only defense to the action is a plea in abatement that the lessee appealed from a decree confirming the plaintiff’s title, and that the appeal was pending when the action was commenced, but was determined before the answer in abatement was filed, such plea is insufficient, and the demurrer thereto was properly sustained, the court stating that matter in
In O’Donnell v. Raymond (1902), 106 Ill. App. 146, it was held that a plea in abatement setting forth the pendency of another suit between the parties for the same subject-matter, must show that such former suit was still pending at the time the plea was filed.
In Wright v. Keifer (1907), 131 Ill. App. 298, the court says: “Under the authorities we think it is settled law that a plea of a former suit pending is not available as a defense, unless the former suit is effectual and the plaintiff can obtain his remedy therein as completely as by the second suit. Branigan v. Rose, 3 Gilm. 123, 128; Phillips v. Quick, 68 Ill. 324, 325; 1 Ency. Pl. & Pr., p. 754. * * * In New York it is settled law that a discontinuance of the first suit after the commencement of the second suit may be shown in answer to the plea, and in this respect the stringency of the ancient rule has been relaxed. Porter v. Kingsbury et al., 77 N. Y. 164, 167. In Willson v. Milliken, 42 L. R. A. 449, 461, the Kentucky Court of Appeals say, after stating the old rule: ‘The more modern rule seems to be that the objection of a former suit pending is removed by its dismissal or discontinuance, even after the plea in abatement in the second suit. Warder v. Henry, 117 Mo. 530; Trawick v. Martin Brown Co., 74 Tex. 522; Grider v. Apperson, 32 Ark. 332; Findlay v. Keim, 62 Pa. State, 112, 117; Moorman v. Gibbs, 75 Iowa 537; Nichols v. State Bank, 45 Minn. 102, and numerous others.’ We think that a more just and reasonable rule, and so hold to be the law.”
In Adams v. Gardiner (1852), 13 B. Mon. (Ky.) 197, defendants pleaded in abatement that a former suit had been brought by the plaintiff against them in the same
In Wales v. Jones (1849), 1 Mich. 254, plaintiff commenced two suits against defendant on the same day, for the same cause of action, — one by declaration, and the other by attachment. The court presumed, nothing appearing on the record to the contrary, that the suit by declaration was first commenced, and held that a plea of that suit in abatement of the attachment suit was bad, because the plea did not state that it was still pending.
The case of Mfrs. Bottle Co. v. Taylor-Stites Glass Co. (1911), 208 Mass. 593, 95 N. E. 103, was a case wherein a plea in abatement for the reason that another action was pending was overruled. The court says: “At common law and in the early practice of the courts in
There is similar liberality to plaintiffs in such cases under the present rules of practice in England. Haigh v. Paris, 16 M. & W. 144; McHenry v. Lewis, 22 Ch. D. 397.” The court then states that: “We are of opinion that it is more equitable, where a second action is brought for a cause that was made the foundation of a
While it was formerly the rule of the common law that a plaintiff could not, after a plea in abatement, based upon the pendency of a prior suit, avoid the effect of such plea by discontinuing the prior action, it is apparent from the foregoing authorities that it is now generally held that a reply to a plea of the pendency of a prior action for the same cause that the prior suit has been dismissed or discontinued, whether before or after the filing of the plea, is good as against demurrer.
But we are confronted with the case of Lee v. Hefley (1863), 21 Ind. 98, in which it is held that where the pendency of another action for the same cause between the same parties is pleaded in abatement, it is not necessary to aver that the action is still pending, because it is sufficient to abate the second action to show that the first action was pending at the time the second action was commenced. This case is cited with approval in the case of Hale v. Miller (1892), 131 Ind. 80, 30 N. E. 884. The rule of law there announced is not in har