Hill v. Dunlap

The opinion of the court was delivered by Redfield, J. The only question reserved in this case is, whether the county court decided correctly upon an issue of fact, joined to them, upon the traverse of a plea in abatement, of the pendency of a former suit, at the time the writ in this action was served. 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. If they were both pending at the same time, the former suit will abate the latter, but not vice versa. In this state, we have adopted the rule, which obtains in Connecticut and some of the other states, that if the party bring a defective suit, he may, upon discovering the defect, discontinue that suit, and bring another, and this shall not be considered vexatious. And if the party gives notice of discontinuance, and brings fresh suit, in the absence of all proof to the contrary, it will be presumed to have been for defect in the former [648] process, else he could have had no motive for the proceeding. As this was an issue of fact, joined to the county court, we cannot well revise their decision, unless the testimony was illegal, or of a degree which was inadequate. For, if the testimony was of a quality to have been submitted to a jury, the finding of the county court upon it is not subject to reversal here. Hence, although it might be argued that the person giving the notice was not authorized so to do, yet, if the parties acquiesced in his authority, they being present or near at hand, when the fact of his authority might have been easily inquired into, the county court might well have inferred he had such authority. The same may be said in relation to the terms in which the notice was communicated. It is true they were rather indefinite, but no doubt in regard to their import being expressed at the time, it might be a fair inference that they were, in fact, understood by the defendant as referring to the former suit. The only question, then, which arises in this case, is, whether notice of discontinuance, being without writing, makes the second suit vexatious. There is no other case in which it has ever been held, that there was a .necessity for notice of discontinuance to be in writing, except to prevent a claim for costs, under the statute, which provides, that, if the party shall discontinue his suit, he shall be liable to pay the other party “ reasonable costs.” And the decision to this extent is rather making law, perhaps, and should not be extended. But even when the party gives notice, orally, of discontinuing his suit, the suit is none the less discontinued, because the other party may be entitled to costs. It is a matter of discretion with the court when costs shall be allowed. They have said they will not allow them when notice is given in writing. But if the notice is oral, the suit is none the less discontinued, and if the party thereafter proceed in it, and take judgment as by default, he will be liable to have it set aside by audita querela. If the defendant have incurred costs which are not tendered, he will be entitled to claim them; and so, for the costs of attending at the time and place of court, if no writing is given for his protection. Still the former suit was discontinued from the time of the notice ; and had the party, after receiving such notice^ disregarded [649] it, and summoned witnesses, he could not recover for their attendance or travel. And this second suit is not, in any sense, to be considered vexatious, because the notice was not in writing, especially when the defendant asked no writing for his security, and did not object to the sufficiency of the notice. Judgment affirmed.