2 Biss. 124 | U.S. Circuit Court for the Northern District of Illnois | 1869
I am inclined to think that this replication ought to be held good; and, in the absence of any express authority to the contrary, I shall so hold. There is an opinion given by Chief Justice Parsons, proceeding on the ground that a suit pending at the time of the commencement of the second suit is a good plea; but this, I think, is not the present doctrine. At any rate, it is not the doctrine in this state; and I think it ought not to be because, when a suit has once been commenced, and is dismissed, the fact that it was pending at the time the second suit was brought is no reason why the court in which the second suit was commenced should not go on and adjudicate on the rights of the parties, because, although there was a difficulty once, it is removed. "When the suit was commenced there was an obstacle in the way. When the plea was pleaded there was the same obstacle. But now, when the replication is filed, that obstacle is removed.
Demurrer to replication overruled.
Plea of lis pendens in another state not good. Smith v. Lathrop, 44 Pa. St. 326, and cases there referred to.
