106 Ind. 16 | Ind. | 1886
The appellee moved the court to stay proceedings in this action until the costs of a former suit should be paid, and the trial court ruled in favor of the appellee. On this ruling error is assigned. The statements of the affidavit filed by the appellee in support of the motion are, in substance, as follows:
The ruling of the trial court was right. The affidavit of the appellee shows vexatious proceedings on the part of the appellant, and the counter-affidavit does not meet its statements. The reason assigned for the dismissal of the first suit is unsatisfactory, for, if no question had been made as to parties, the appellant could unquestionably have enforced his mortgage, because the failure to present the question of defect of parties by plea or demurrer is a waiver. But, aside
If the failure to pay costs was owing to the lack of means in appellant’s hands as administrator, that fact ought to have been shown. For anything that appears, the appellant had abundant means in his hands as administrator, and an administrator with means at his command can not be allowed to vex another by repeated actions unless he first pays the costs in the first action.
Where a seco.nd action is commenced, the presumption is that it is vexatious, and the burden of removing this presumption rests on the plaintiff. State, ex rel., v. Howe, 64 Ind. 18; Kitts v. Willson, 89 Ind. 95. In this instance this presumption is not overcome.
Judgment affirmed.