| Ala. | Nov 15, 1895
Lead Opinion
When a second suit has been commenced between the same parties ■•while another and former suit between them, on the same cause of action, is pending, and the plaintiff dismisses the first action,
There is considerable conflict of authority on the subject ; and it may be admitted, with the preponderance of modem authority in favor of the affirmative of this proposition.
A plea in abatement that there is a prior action pending between the same parties for the same cause, is admitted tobe, in general, ¿good plea. The reason is, that the law abhors a multiplicity of suits, and will not permit a party to be harassed by two or more actions for the same thing, when the same result might be accomplished in one of them. The object of this rule is to prevent vexation. — Gould’s Pl.,p. 282, § 122.
The same author says in section 125: “It is immaterial whether the first suit is pending or not, at the time of the defendant’s pleading in abatement of the second. If the first was pending when the second was commenced,, the latter may be abated, as being vexatious ab initio. And on principle, it seems that this plea can never prevail, except in cases where the latter suit is vexatious.” The same doctrine is thus stated in 1 Bacon’s Ab. 28 M: “The law abhors multiplicity of actions, and, therefore, whenever it appears on record, that the plaintiff has sued out two writs against the same defendant, for the same thing, the second suit will abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum ; and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement; for if there was a writ in being at the time of suing out the second, it is plain the second was vexatious and ill ab initio.” And as supporting the same doctrine, .the following cases are cited: Parker v. Colcord, 2 N. H. 36; Com. v. Churchill, 5 Mass. 174" court="Mass." date_filed="1809-03-15" href="https://app.midpage.ai/document/commonwealth-v-churchill-6403362?utm_source=webapp" opinion_id="6403362">5 Mass. 174; Beach v. Norton, 8 Conn. 74; Frogg v. Long, 3 Dance, 157; Gamsby v. Ray, 52 N. H. 513; Demond v. Crary, 1 Fed. Rep. 480; Knight’s Case,
To the foregoing doctrine this court has given its sanction. In the case of Foster v. Napier. 73 Ala. 603, after quoting the foregoing extract from Bacon’s Abridgement, it was added : “It is the pendency of two suits for the same cause, their existence simulet semel, the law deems vexatious and discountenances. However meritorious may be the cause of action, it must not be employed for the purpose of oppression ; and when a defendant is twice impleaded by the same plaintiff, for the same thing, the oppression and vexation is not a matter of fact; it is a conclusion of law, and is not dependent upon an inquiry into the actual circumstances of the two cases. * * * Whether the prior Suit is capable of being made effectual, is, in the second suit, a collateral, incidental inquiry; however it may then be decided, the defendant is not by its decision relieved from its burdens. There is a continuing necessity that he should remain before the court, prepared to make defense against it. These are, in our judgment, the evils against which the principle is directed. There can be no necessity for the institution or the pendency of two suits for the same matter, at the same time. The security of the plaintiff can not require it. If the prior suit is defective and must prove ineffectual, the statute authorizes its dismissal in vacation. — Code, § 2741, (3025).” The section of the Code here referred to, was adopted, originally, it would seem, in recognition of the rule that a second suit between the same parties for the same cause of action, can not be instituted while the former suit is pending, and (o do away with the necessity of delaying until the next term of the court, to dismiss the first, so as to make the institution of the second'legal. The rule as laid down in the case last referred to, where the question received very full consideration, was recognized still later, where it is said in an opinion rendéred by the late Chief Justice StoNE : “The case of Napier v. Foster, 80 Ala. 379" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/napier-v-foster-6512545?utm_source=webapp" opinion_id="6512545">80 Ala. 379, holds, that a pending suit, although fatally defective, and subsequently dismissed on that account, will defeat a second suit on the same cause of action, brought before the dismissal of the first.”—Jones v. McPhillips, 82 Ala. 102" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/jones-v-mcphillips-6512750?utm_source=webapp" opinion_id="6512750">82 Ala. 102, 117. We are unwilling to disturb the authority of these cases, in line with former adjudi
What we have said renders, it unnecessary to .notice the replication of the plaintiff to the defendant’s plea of the pendency of another suit, further than to say, that the plea to the first action in the circuit court of Jefferson county, against its jurisdiction of said cause, did not, in any way, estop the defendant from pleading the pendency of that suit against the one brought, before its dismissal, in the circuit court of Montgomery county. The pendency of either, might have been pleaded in abatement to the other. The first; stood for trial on the plea interposed in it, at and after the commencement of the second action, and was vexatious on that account.
It ought to be added that the principle declared is applicable where the court in which the first suit was brought and is pending has jurisdiction, as in this case, of the subject matter, and that the pendency of such proceeding in a court having no such jurisdiction, is no cause for the abatement of the proceeding in the same case in a court which has, and furnishes no ground for dismissing it from the latter court.—Rood v. Eslava, 17 Ala. 430" court="Ala." date_filed="1850-01-15" href="https://app.midpage.ai/document/rood-v-eslava-6504224?utm_source=webapp" opinion_id="6504224">17 Ala. 430; Newton v. Newton, 10 Pick. 470.
There was no error in the rulings of the court below, and its judgment is affirmed.
Affirmed.
Rehearing
Response to ApplicatioN eos Rehearing.
It is not a matter of dispute that a plea setting up in abatement of the action the pendency of an action previously instituted, between the same parties, for the same'cause, in a court having jurisdiction of the subject matter, is good. Such was the case of Foster v. Napier, 73 Ala. 595" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/foster-v-napier-6511682?utm_source=webapp" opinion_id="6511682">73 Ala. 595. The plea in that case, as the record shows, alleged that the former action was still pending.
It is now presented, for the first time, so far as we have discovered, in this court, to determine whether or no the pendency of the former action at the time of the institution of the latter, the former being thereafter dis
We adopt this view of the law, and order that the judgment of affirmance heretofore rendered be set aside, and that the judgment of the circuit court be reversed and the cause remanded.
•Application for rehearing granted ; former judgment set aside, reversed and remanded.