32 P.2d 723 | Okla. | 1934
On the 16th day of July, 1924, the Oklahoma Press Publishing Company, a corporation, published in the columns of its newspaper, the Muskogee Daily Phoenix, certain language of and concerning W.M. Gulager. On the 21st day of July, 1924, W.M. Gulager commenced an action for libel against said company and certain of its officers and employees in the district court of Muskogee county, Okla. Service of summons was obtained on the same date, July 21, 1924. Thereafter, on July 23, 1924, W.M. Gulager filed his petition for libel in the district court of Cherokee county, Okla. Praecipe for summons was not filed therein until July 3, 1925, and service not obtained until July 9, 1925. It appears that the petitions in the two cases are identical, except as to the jurisdictional clauses, rely upon the same language and publication, and name the same defendants. Prior to the trial all defendants except the Oklahoma Press Publishing Company were discharged in each case. On its motion to quash filed August 13, 1925, and heard February 26, 1926, in the Cherokee county case, defendant presented the issue in abatement, among others, that a prior action was pending in Muskogee county. Upon being overruled, it saved its exception, then commenced an original action in the Supreme Court for writ of prohibition to prevent further proceedings in Cherokee county. The opinion of this court in that action was filed February 14, 1928, styled, State ex rel. Oklahoma Press Publishing Company v. District Court of Cherokee County, reported in *246
The plea in abatement in the answer, which was stricken out by order of the court and later presented at the trial in a motion, and evidence offered in support thereof, and considered by the court, and the plea again denied, was properly incorporated in the answer, and the pleadings should have been amended after the evidence was offered to conform to the proof offered in support of the motion without objection. The amendment which ought to have been allowed, if leave to make it had been asked in the trial court to conform it to the evidence adduced without objection, will be regarded on appeal as having been made. Atlas Assurance Co., Ltd., v. Leonard,
The first, and determinative, question propounded on this appeal is whether the district court of Cherokee county committed error in denying defendant's plea in abatement that another prior identical cause was pending in Muskogee county.
The opinion of this court denying the writ of prohibition, cited supra, discloses that the question now raised was not passed upon; that it denied the writ on the theory that prohibition was not a proper remedy. It used the following language from the single case relied upon — State ex rel. Johnson v. Withrow, Judge (Mo.) 18 S.W. 41:
"* * * The circuit court having jurisdiction of this class of cases and over the persons of the defendants, how was it to know that by reason of the action of the parties in another court it had become improper for it to further have and keep jurisdiction of the case? The answer is apparent at once.It must be done by a demurrer or answer, under our practice. * * * If it did not appear on the face of the petition, then they were required to make their objection by answer.
" '* * * For the purposes of this case it is sufficient to determine that the circuit court of St. Louis had jurisdiction of the action against relators. If it did, then prohibition will not lie, and the fact that it may erroneously decide some of the questions before it will not alter the case.' "
The question is not new in this jurisdiction, and is settled adversely to defendant in error. It was decided in Myers v. Garland,
"It is, in effect, this, that where a plea of another action pending is interposed to work an abatement and a dismissal of a suit, the action pleaded shall be considered as pending, if it is between the same parties, and involves the same cause or causes of action, and is in a court which has jurisdiction of that class or character of action, and this is true, until the right of the first court invoked to hear and determine the particular cause has been finally adjudged."
The rule was at least recognized and treated as applicable in the following cases: Jay v. Zeissness,
Defendant in error relies upon one case — Brink v. Bartlett,
We, therefore, hold, that the defendant was entitled to have its plea in abatement for prior action pending decided prior to entering trial on the merits, and that under the facts in this case such plea should have been sustained, and the cause in Cherokee county district court dismissed.
Cause reversed and remanded to the district court of Cherokee county, Okla., with directions to sustain the plea in the nature of a plea in abatement.
CULLISON, V. C. J., and McNEILT, OSBORN, and WELCH, JJ., concur.