75 So. 166 | Ala. | 1917
Effecting to change the rule that had previously prevailed here, it was decided on rehearing in Coaldale Brick Co. v. Sou. Const. Co., 110 Ala. 605, 613, 614, 19 South. 45, that a second action, between the same parties for the same cause, in a court of competent jurisdiction, could not be abated because of the pendency of the first action if the first action was dismissed before the filing of a plea in abatement of the second action because of the pendency of the first action. This announcement was repeated in S.-S. & I. Co. v. Milbra, 173 Ala. 658, 666, 55 South. 890. The court attained this conclusion notwithstanding it accepted the doctrine illustrated in Foster v. Napier, 73 Ala. 595, that the second action could be abated on plea to that end if the former action (still pending when the second action was commenced) was for the same cause, between the same parties, in a court’having jurisdiction of the subject-matter. The necessary result was to affirm that the offense or wrong, so to speak, given or done by the institution of the second action under those circumstances might be, in fact was in that case, atoned for if the first suit was dismissed before plea filed. Reference to the Milbra Case, supra, and to Howell v. Howell, 171 Ala. 502, 511, 54 South. 601, the former involving a consideration of the sufficiency of a plea in abatement because of the pendency of a previously instituted action, and the latter, the matter of evidence in support of the averment of the pendency of the previous action when the second bill was filed as well as when the plea in abatement was filed, discloses that the time and efficiency of the atonement that may be afforded by a dismissal of the first action were not factors affecting the judgment of this court in those cases.
The fourth headnote to McLaughlin v. Beyer, 181 Ala. 427, 61 South. 62, is not justified by the court’s opinion.
For the single error in overruling the demurrer, as referred to its third ground, the judgment must be reversed, and the cause remanded.
Reversed and remanded.