Woods v. Darling

Tyler, J. On September 8, 1898, the plaintiff brought an action of general assumpsit against the defendant, making the writ returnable to the December term, 1898, of Orange county court; service was made upon the defendant September 9th, and the case was duly docketed September 27th. The defendant’s counsel entered their appearance and filed a motion to dismiss the writ for the reason that it directed the defendant to enter his appearance within twenty-one days from its date instead of forty-two days as [352] the statute required. The plaintiff then, and before the service of the writ in the present action, discontinued the first suit and gave the defendant a written notice thereof. He then brought the present action to which the defendant pleaded in abatement, alleging the pendency of the former suit. The question is whether the first suit was in fact pending when the second one was brought. The rule of the common law required the second suit to be abated upon the supposition that it was unnecessary and vexatious, and that a man ought not to be harassed by two suits pending at the same time for the same cause of action. In New Hampshire it has been held that a plaintiff cannot before entry discontinue his suit without the defendant’s consent and thus avoid a plea of a former action pending. Bennett v. Chase, 21 N. H. 570; Gamsby v. Ray, 52 N. H. 513. In the latter case the court reasoned that the law abhorred a' multiplicity of suits, and that if a plaintiff might bring one suit and discontinue it he might annoy the defendant indefinitely; that under the liberal practice in that state allowing amendments it was more expedient that the second suit should abate than that the court should try the collateral question whether or not it was vexatious. Downer v. Garland, 21 Vt. 362, is, however, quoted as holding a different rule. In this State the rule has always been that where a suit has been commenced by a process which is defective, it may be discontinued; that a second one may be brought, and that the second will not be considered vexatious; also, that the first suit may be discontinued by oral notice. The defendant contends that, as the present statute requires cases to be docketed in vacation and appearance to be entered within a certain time, the plaintiff had no right to discontinue his case, take it out of the control of the court and prevent a hearing upon the plea or motion. We think, however, that the facts that the case had been docketed and an appearance entered afford no reason why [353] the plaintiff might not enter a discontinuance out of term. The case was then no longer in court to affect the right of the plaintiff to bring another suit, but it remained in the control of the court upon all questions of costs. V. S. 1403 is as follows'. “If a person causes process to be served on another and discontinues his suit, or becomes nonsuit therein, or if such suit is abated or dismissed for want of jurisdiction, the court to which such process is made returnable shall give judgment for the defendant to recover reasonable costs.” . . . The above section, as it stood in 6. S.' 267, § 42, was held to relate to suits that had been entered in court, yet by an equitable construction of the term “reasonable costs” was also held to cover such costs as had accrued to the defendant before the suit was discontinued, though before the return day, as costs for summoning witnesses or in taking depositions. In such cases the court, on complaint or petition, has power after discontinuance to render judgment for taxable costs. Fullam v. Ives, 37 Vt. 659; Mead v. Arms, 2 Vt. 180. This seems to obviate the defendant’s objection to a discontinuance after the docketing and appearance. We find no occasion to apply a different rule from that laid down in Hill v. Dunlap, 15 Vt. 645; Downer v. Garland, supra; and Kirby v. Jackson, 42 Vt. 552. ffiidgmeni affirmed and cause remanded.