47 Mo. App. 502 | Mo. Ct. App. | 1892
Plaintiffs, who were merchants at Rozier, Bates county, Missouri, on August 22, 1890, held an account against defendant Conley, for goods sold him during the three months preceding, with a balance due thereon'of $614.71. On said day plaintiffs went to a justice of the peace, and in order to come, as they thought, within the justice’s jurisdiction, divided the account in three parts, including in one certain items amounting to $216.41, in another, charges amounting to $227.61, and in still another, the remaining items of the account amounting to $170.69. And on these various divisions plaintiffs then and there, at the same time, instituted before the justice of the peace three different suits.
On the return day the justice entered three separate judgments against the^ defendant, from which the defendant appealed to the circuit court. In the circuit court defendant filed his motion in each of the said cases, asking the court to dismiss the same for want of
This was clearly an effort by the plaintiffs to avoid the well-known provisions of our statutes relating to the jurisdiction of courts. They held the one claim, which was one, and only one, cause of action for an amount beyond the jurisdiction of the justice, and which was under the law alone cognizable by the circuit court; but the attempt was made, by dividing this one cause of action into three separate matters of complaint, to give the justice jurisdiction of that which, the law provides he shall not have. It has been repeatedly held that this cannot be done. The plaintiff may voluntarily renounce the excess, and thereby bring the demand within the jurisdiction of the inferior court. Hempler v. Schneider, 17 Mo. 258; Denny v. Eckelkamp, 30 Mo. 140. But the proceeding here by the plaintiffs was quite the reverse of this. They did not renounce or voluntarily remit any of their claim, but sought to enforce payment of the whole, in a court which had no jurisdiction of that amount, by dividing up the cause of action. These three suits were then each for the same identical cause of action. And having brought three several suits, at the one time, for the same cause of action, the question is, ought they not all to be dismissed ? Bid not each abate the other? The authorities, we find, uniformly hold the affirmative of this proposition. If two or more suits be brought on the same cause of action at the same time, then the rule is that each may be pleaded
This just rule has for its basis the well-known maxim, that parties shall not be twice vexed for the same thing. If the institution of the several actions are not the same in point of time, then the first brought will be considered as having occupied the ground, and the tendency of suck first suit will have the effect to ■abate the subsequent actions; for “the law abhors a multiplicity of actions; and, therefore, whenever it .appears that the plaintiff has sued out two writs against the same defendant for the same thing, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached of his goods for the :same thing, by the same reason he might suffer ad infinitum.” 1 Bacon Abr., p. 28. But in a case like this (where the vexatious suits are brought at one and the same time ) there is no priority, no one of the pending cases has precedence over the other; which then ■.should be dismissed? One suit, it is clear, ought to abate. The court cannot make a selection. ‘ ‘ The true course seems to be,” as stated in Beach v. Norton, supra, ‘ ‘ to leave the parties where they originally were; this is the only effectual mode of preventing similar experiments, and of vindicating the law from the reproach of suffering its process to become the instrument of oppression.”
The judgment then of the circuit court will be reversed, and the cause remanded with instructions to sustain defendant’s motion to dismiss the action.
