133 Tenn. 423 | Tenn. | 1915
delivered the opinion of the Court.
Miss Vandiver recovered a judgment against Walker based on the verdict of a jury for the sum of $1,500 as' damages for breach of a contract to marry, and the court of civil appeals affirmed the judgment. Walker has broug’ht the record here on petition for certiorari, and makes a single assignment of error, which is that the court of civil appeals erred in holding that the replication to the plea in abatement was sufficient. •
The plea in abatement was based on the pendency of two former suits for the same cause of action by plaintiff against defendant. The plea averred that one of said suits was pending in the circuit court of Franklin county at the time of the institution of the present suit, and the same averment was made in respect of the pen-dency of another suit in the circuit court of Bledsoe county; wherefore judgment was prayed of the summons and declaration in the present suit that they be quashed. To the foregoing plea in abatement plaintiff replied that when the summons in the former Franklin county action was sued out defendant had absconded, concealing himself so that service could not be. had upon him, and that service of said summons was never máde upon defendant, wherefore that action had been abandoned by plaintiff before the present suit was instituted.
The summons in the former Franklin county suit was issued on April 5,1913, and the summons in the present suit was issued on November 28, 1913, and was executed by service upon defendant the same day it was
In addition to the above reply to the plea in abatement as to the former Franklin county suit it appears that said suit was formally dismissed by proper order in the circuit court of Franklin county made at its August term, 1914, and this dismissal was prior in date to the filing of the replication of the plaintiff to the plea in abatement, but after the plea was filed.
The reply made by plaintiff to the plea in abatement in respect of the Bledsoe county former suit was that at the time of the suing out of process in said action the defendant, who was a citizen of Franklin county, was in hiding in Bledsoe county, concealing himself there for the purpose of avoiding process. Nevertheless process was served upon him in said former Bledsoe county suit, and thereafter defendant returned to his home in Franklin county, whereupon plaintiff abandoned her suit in Bledsoe county, and instituted the present suit in Franklin county, and since the filing of the plea in abatement in the present cause on December 16, 1913, plaintiff has formally dismissed the Bledsoe county
Undoubtedly the Bledsoe county suit was a former suit pending at the date of the institution of the present suit.
It is insisted for defendant that according to the common-law rule plaintiff could not, after a plea in abatement of the pendency of a former suit, avoid the effect of the plea by setting up in reply a discontinuance or dismissal of the former suit. On this subject, in 1 Corpus Juris, p. 94 sec. 132, it is said:
‘ ‘ The rule at common law was to sustain the plea if it was true at the time it was filed. Accordingly, at common law plaintiff could not, after a plea in abatement of the pendency of a prior suit, avoid the effect of the plea by discontinuing the prior action” — citing Chitty Pl. (16th Am. Ed.) 470; Knight’s Case, 2 Ld. Raym., 1014, 92 Reprint, 175, 1 Salk., 329, 91 Reprint, 290. And see Wright v. Keifer, 131 Ill. App., 298. “And this rule has been followed in some of the States ’ ’ — cit-Nashville, etc., R. Co. v. Hubble, 140 Ga., 368, 78 S. E. 919; Singer v. Scott, 44 Ga., 659 (under Georgia Code); Frogg v. Long, 3 Dana (Ky.), 157, 28 Am. Dec., 69; Com. v. Churchill, 5 Mass., 174; Le Clerc v. Wood, 2 Pin. (Wis.), 37. And see Curtis v. Piedmont Lumber, etc., Co., 109 N. C., 401, 405, 13 S. E., 944. Compare, however, Rogers v. Hoskins, 15 Ga., 270. “In nearly all jurisdictions, however, the modern doctrine is that it is a good reply to a plea of the pendency of a prior action for the same cause that the former suit has been dis
In 1 Cyc., p. 25, the present rule is stated as follows:
“The tendency of the later cases and a preponderance of authority sustain the doctrine that it is a good answer to a plea of the pendency of a prior action for the same cause that the former suit has been discontinued, whether the discontinuance be before or after the filing of the plea. Under this doctrine the plea will be overruled unless the prior suit is pending at the time of the trial of the second. ’ ’
To sustain the above text a large array of authorities is cited.
It is insisted for defendant that this question is open in Tennessee. The point is, however,.hardly maintain
“If the plea in abatement is the pendency of another suit for the same cause of action, the former suit may be dismissed, and that fact being replied, the abatement is obviated. ’ -
Turner v. Lumbrick, 19 Tenn. (Meigs), 7-13, was an action of forcible entry and detainer, to which the defendant pleaded a former suit pending wherein the same form of action between the same parties was being prosecuted, and prayed that the proceedings in the later suit be quashed. The plaintiff admitted that there was another action pending for the same cause between the same parties, but “elected of record to proceed in the present action, and released the defendant from all and every other action of forcible entry and detainer except the present. ” Whereupon the trial court directed that the trial of the cause be proceeded with, and the verdict of the jury was in favor of the plaintiff on the issue thus made. In disposing of the question, Judge Green, speaking for the court, said:
“But the plaintiff having released of record, all other actions of forcible entry and detainer, the court refused to continue the cause. In this there is no error. If there was another suit pending for the same cause of action, this release might have been pleaded as an effectual defense.”
It is insisted for defendant that under the rule of the common-law the replication to the defendant’s plea was insufficient, inasmuch as the plea was true at the
“The law abhors multiplicity of actions; and therefore whenever it appears on record that the plaintiff had 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 by his goods for the same thing, by the same reason he might suffer infinitum; and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement; for if there was a writ in being at the time of the suing out of the second, it is plain the second was vexatious, and ill ab initio.”
The reasoning above set out hardly suffices to answer the demands of justice under conditions which prevail at the present day. Especially is this true under our
We think there is no merit in petitioner’s assignment of error, and the same is therefore overruled, and the judgment of the court of civil appeals is affirmed.