15 Or. 345 | Or. | 1887
The respondent commenced a suit in the said Circuit Court for Multnomah County, against the appellants, for a settlement of partnership business arising out of an alleged partnership between the said parties. The appellants interposed
The respondent demurred to the answer upon the following grounds: (1) That the said answer did not state facts sufficient to constitute a defense. (2) That it showed upon its face that the' former suit pleaded therein was not between the same parties to this suit.. (3) That said answer showed upon its face that the plaintiff in this suit was not the plaintiff in said former suit.
The court sustained the demurrer, and the respondents having refused to further plead, their default was entered, and the case referred to a referee to state an account between the parties, which the referee reported to be $3,519 in favor of the respondent and against the appellants. The court confirmed the report, and entered the decree thereon, from which this appeal is taken.
The only question of law for our determination is the sufficiency of the answer as a defense to the suit. The respondent’s counsel make two points upon the question of its sufficiency: (1) That the answer shows that the suit herein is not between the same parties as the former suit; and (2) that a defendant.
The appellant’s counsel contend that the same degree of strictness, as to the rule that parties must be the same in both cases, is not observed in equity as at law, and that, therefore, the first ground is not maintainable, and they deny that the second ground is correct. The defense “that there is another action pending between the same parties for the same cause,” under the Code of this State, is made applicable to suits in equity as well as actions at law, and in view of that fact, I am not able to discover how any discrimination can be made in the two classes of procedure, as contended for. The Code, in certain respects, maintains a distinction between actions and suits, but in others, the same provisions are made applicable to both. In its interpretation the rules that formerly prevailed may be consulted, doubtless, with profit; but to undertake to apply the more technical rules of the common law to law cases, and the more liberal ones of equity to equity cases, when the statute provides the same mode of procedure for both, would, it seems to me, be judicial legislation. The Code provides “ that the forms of pleading in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, shall be those prescribed by the Code.” (Civ. Code, § 62.) Rules which governed under a former system, therefore, in regard to the effect of the pendency of a former action or suit as an abatement of a subsequent one, are important only as aids in the construction of present ones. The letter of the Code in such cases must govern where its meaning is obvious, and where its meaning is doubtful, resort must be had to those tests which the wisdom of ages has established as the most reliable means of ascertaining legislative intention. The Code allows the fact that there is another action or suit pending between the same parties, for the same cause, to be pleaded by way of answer, when it does not appear upon the face of the complaint. The meaning of this provision is plain to any person of ordinary intelligence. The evident object of it was to prevent unnecessary litigation; to avoid a second lawsuit,
I do not believe, either, that it is necessary that the parties should be identical in both suits, in order to admit the defense; I think privies would be included as well. I think the term “parties” includes privies. If A, therefore, were to commence an action against B, and then assign his cause of action, or some part thereof, to C, and the latter commence an action thereon, the defense of a former action pending between the same parties for the same cause would be available under a fair construction of the provision of the Code referred to.
Pleading the former suit. But the answer in such cases should aver facts showing clearly that the former action or suit was in substance and effect between the same parties and for the same cause. It would not be sufficient to allege the mere deduction from facts. Under the former equity practice the defendant’s plea had to set forth with certainty: (1) The commencement of the former suit; its general nature, and the character and object and relief prayed. (2) That the second suit was for the same subject-matter as the first. (3) A statement, not only that the same issue was joined in the former suit as in the second, and that the subject-matter was the same, but also that the pleadings in the former suit were taken for the same purpose. And the plea had to aver, also, that there had been proceedings in the suit such as appearance, or process requiring an appearance, at least. (Story on Equity Pleadings, § 737.) The truth of the plea, then, had to be established by proof.
The defendant, at the time of filing the plea, had to obtain an order of reference to a master to examine and report whether the plea be true, and procure his report to that effect; and if he neglected to procure such report within twenty days, or the report was against the verity of the plea, it would be considered as
We do not approve, however, of the course pursued by the Circuit Court in allowing the two cases to proceed independently of each other. Such practice would necessarily lead to confusion and embarrassment. . The court should either have stayed proceedings in the subsequent suit until the prior one was determined, or have consolidated the two and had the controversy closed out in one litigation. The matter is too important to be determined virtually upon mere technical proceedings. The decree appealed from should be set aside, and the cause remanded to the court below, with directions to consolidate the two suits and order another reference to take an account between the parties; that the appellants have the right to appear at the hearing before the referee, and establish any proper claim they may have against the respondent growing out of the affair between the parties, relevant to the cases; but that they be required to pay the taxable costs and disbursements of the reference already had, as a condition of the right herein granted; neither party to recover costs of appeal, and each to pay one half of the clerk’s fees in this court.