71 Cal. 452 | Cal. | 1886
We adhere to the opinion formerly expressed by us in this cause, which was approved by Department Two of this court.
The plaintiff had an opportunity in his former action do have amended his complaint, but did not choose to do so, preferring rather to prosecute an appeal from the judgment rendered therein, and to commence another suit, with the same subject-matter, against the same parties in another county, without dismissing that appeal; his last action was therefore unnecessary and vexatious, and should be abated, and the judgment in this cause should be the same as that heretofore rendered by Department Two.
Belcher, C. C., and Searls, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded, with directions to the court below to enter judgment in favor of defendant Brynes, that the action abate, and for his costs and disbursements.
The following is the opinion above referred to, rendered on the 24th of May, 1886:—
This is an appeal from a judgment rendered in an action on an undertaking for the release of an attachment, and an order denying the defendant a new trial. As one of his defenses set up in his answer, Byrnes (Atkinson not having been served with process) alleged that there was another action pending against him, brought by the same party plaintiff, for the same cause of action. Findings of fact were waived, but the
Searls, C., and Belcher, C. C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded, with directions to the court below to enter judgment in favor of defendant Byrnes, that the action, abate, and for his costs and disbursements.
Rehearing denied.