42 Vt. 552 | Vt. | 1870
The opinion of the court was delivered by
The only question presented by the pleadings and facts in this case is whether the county court decided correctly as to what constituted the commencement and pendency of this action. The defendant pleaded in 'abatement the pendency of a former suit, and the plaintiff replied that the former suit was discontinued before the commencement of this suit, and issue thereon
The case of Downer v. Garland, 21 Vt., 362, has been much relied upon by the defendant’s counsel, but it does not support the position taken by the defendant as to whether the second suit was vexatious. In that case the defendant pleaded in abatement the pendency of a former suit. The replication admitted the commencement of the former suit, alleged that the former suit was defective, and for that reason the plaintiff, before bringing the second suit, discontinued the former one. The rejoinder simply traversed the allegation of the discontinuance of the former suit, and the only question raised by the pleadings was, whether the former suit was discontinued before service of the writ in the second suit. The remarks of the judge who delivered the opinion of the court in that case, as to the cause for the discontinuance of the former suit and whether the second suit was vexatious, arc based upon the supposition that the first suit was pending when service of the writ in the second suit was made. That case does not differ in principle.from the case of Hill v. Dunlap, 15 Vt., 645. In the latter case Redeield, J., says : “ The suits must have been both pending at the same time, or there is no ground of pleading in abatement on that account. If that is not the case, there is nothing vexatious.” But the court had no occasion in either of those cases to decide, and did not decide, that the cause of the dig-
We find no error in the .ruling of the county court, and the judgment of that court is affirmed.