254 Pa. 357 | Pa. | 1916
Opinion by
April 30,1915, the plaintiff sued in the Common Pleas of Fayette County to recover on a promissory note; May 17, 1915, an affidavit of defense was entered as follows: “The plaintiff herein brought an action of assumpsit against the said J. M. Hustead and John E. Hess in the Court of Common Pleas of Greene County, Pennsylvania, to No. 192, June Term, 1915, on the identical note set forth in the plaintiff’s statement herein, which action in said Court of Common Pleas of Greene County is still pending and undetermined.” May 21, 1915, the plaintiff took a rule for judgment for want of a sufficient affidavit of defense, and in support thereof he assigned two reasons: (1) that the action in Greene County had been discontinued and the costs paid, and that no action of any kind or character was then pending on the note in question in any court whatever “excepting only the case at bar”; (2) that “the execution and delivery of the said note or correctness of the amount of the debt and the defendant’s liability are in no wise questioned, but, in legal effect, are admitted.” July 13, 1915, the rule was made absolute and judgment entered in favor of the plaintiff. John E. Hess, a defendant, has appealed.
The appellant contends that the court below, in disposing of the rule before it, should not have considered anything aside from the statement of claim and affidavit of defense. Ordinarily this would be true, but the affidavit in the present case was nothing more nor less than a plea in abatement; and a plea of this character was still allowed after the Act of May 25, 1887, P. L. 271, and before the new Practice Act of May 14, 1915, P. L. 483, which did not go into effect until January 1, 1916 (Fitzpatrick v. Riley, 163 Pa. 65; Meikle v. Northwest
In the present case, both the affidavit which set up the matter in abatement and a general issue plea were filed on the same day. The rule is that a plea in abatement must be entered before one in bar, and that the former fails of effect after the filing of the latter: Smith v. People’s Mut. Live Stock Insurance Co. of Penna., 173 Pa. 15, 26, 27. It is also a rule that “an issue raised in abatement should be heard at the first term and before the issues on the merits”; furthermore, “where a plea of another action pending is filed, plaintiff may elect whether to submit to judgment on the plea or dismiss the other suit, and if plaintiff confesses the truth of the plea by amending the defects pointed out, defendant is not prejudiced by the court’s action in ignoring the plea”: 31 Cyc. 186-7. Again, while there is a rule that, when matter in abatement is rejected, “the defendant has the right to answer over” (id. 187), yet, here, since the appellant did not ask to file a supplemental affidavit of defense, and does not now complain of a denial of that privilege, it is apparent that he was in no sense prejudiced by not being formally given an opportunity to answer over.
When the matter pleaded in abatement is the pend-
The affidavit did not attempt a defense on the merits, but simply averred matter in abatement. Such matter “must be pleaded with exactness and should be certain to every intent; it cannot be aided by any intendment or inference”: 31 Cyc. 179. “An affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it as favorable to himself as his conscience would allow”: Law v. Waldron, 230 Pa. 458, 466; Baker v. Tustin, 245 Pa. 499, 501. The affidavit in the present suit fails to aver the date when the other action complained of was commenced, or that it was, in fact, a prior action; for all that appears therein, it may have been instituted subsequent to the action at bar; counsel for the appellee assert that such vas the case, and this is not'denied by the appellant.
It is established by the authorities on the subject that the mere bringing of a subsequent suit will not abate a pending action; in other words, “The original or first
A defendant is not to be harassed by having several suits for the same cause pressed against him at one time; but, should a plaintiff attempt to pursue a second or subsequent suit, the remedy to prevent this is immediately to set up as a matter of defense the pendency of the prior action. Of course, if a judgment is secured in either suit, it can always be pleaded in bar; but the mere fact that, after an action properly brought, a subsequent suit is instituted for the same cause, will neither bar nor abate the prior action. Since the present affidavit of defense did not aver that “a prior action” was pending, it was insufficient; and, on that ground alone, we
The assignment of error is overruled, and the judgment is affirmed.