Orman v. Lane
130 Ala. 305
Ala.
1900
Check Treatment
McCLELLAN, C. J.

The considerations which underlie the doctrine that the pendency of a previously instituted suit is good ground for abatement of another suit between the same parties and upon the same cause of action take no account of the puissance of, or the want of it in the former action. As was said in Foster v. Napier, 73 Ala. 603: “It is the pendency of two suits for the same cause, their existence simal et semel, the law deems vexatious, and discountenances. * * * * Whether the prior suit is capable of being made effectual, is, in the second suit, a collateral and incidental inquiry; however it may be then decided, the defendant is not by its decision relieved from its burdens. There i® a continuing necessity that he should remain before the court, prepared to make defense against it. These are, in our judgment, the evils against which the *309principle is directed.” And these principles are as pertinent and controlling Where the infirmity of the prior suit lies in the want of personal jurisdiction of the court in which it is pending as in any other case. Of course, if the court in which the former suit is pending has no jurisdiction of the subject-matter so that any judgment it might render would be a nullity, the pendency of that wholly abortive action would afford no ground for the abatement of a suit subsequently instituted in a competent tribunal. But where the forum of the first action is competent to proceed to a final and valid judgment if the defendant consent to its so. proceeding, we apprehend that a defendant served with process and not appearing, or appearing and not objecting to the jurisdiction, would be holden to have so consented. Hence, in such case, the defendant would 'be under the necessity and be put to the vexation and harassment of making and sustaining to the end of the suit his attitude of objecting to its prosecution against him by appropriate pleadings.

Applying these considerations to the case at bar, the conclusion must be that the pleas of certain of the defendants should have been adjudged sufficient by the chancellor. They set up the pendency of a former suit by this complainant against them for the same cause of action presented in this suit. That suit was brought in a 'Court which by the express terms of the statute could proceed to final and valid judgment with the consent of the respondents.—Bardes v. Hawarden Bank, 178 U. S. 524. The true pleas also showed that they had not consented, but to the contrary 'had interposed a demurrer to the former bill, challenging the jurisdiction of the court; but they further showed that this demurrer had been overruled, and the demurrants had been by that judgment driven to an appeal to the United States Circuit Court of Appeals, and that the cause at time of pleas pleaded was pending in that court on that appeal. The burden of prosecuting that, appeal is still upon the respondents, for if they abandon it, there will be a dismissal; and in that event they would have to make further defense in the district court, or, failing *310to plead over, be taken to have 'consented to the jurisdiction of that court.

The decree of the chancellor must be reversed, and a decree will be here rendered sustaining the sufficiency of the pleas.

Reversed and rendered.