143 A. 615 | R.I. | 1928
This action is before us on exception to a ruling of a justice of the Superior Court defaulting defendant after he had filed a plea in abatement.
The action is assumpsit originally brought in the Superior Court. Defendant filed a plea in abatement stating that the cause of action was the subject of another action then pending between the same parties in said court and prayed judgment if he should be required to further answer said writ and declaration. Plaintiffs filed no demurrer or replication to this plea. On plaintiffs' motion the case was assigned for jury trial to be heard October 19, 1927. When the case was reached defendant's attorney moved that the case be passed because the pleadings were not closed. Plaintiffs' attorney stated that after the plea in abatement had been filed the prior action mentioned therein had been discontinued and claimed that the plea in abatement was no longer of any effect. Defendant's attorney stated that he relied upon the plea and that he was not ready for trial on the merits of the case as defendant was not present. The court ruled that the plea in abatement was no longer true and, upon plaintiffs' insistence on trial, defaulted the defendant. On this state of the record did the trial justice err in defaulting the defendant? We think he did.
A plea in abatement alleging the pendency of a prior action for the same cause between the same parties in the same court is a valid plea and will abate the later action. *408
1 C.J. 45. Such pleas are recognized in this State. Gardner v.James,
Defendant's exception is sustained. The case is remitted to the Superior Court for further proceedings.
