Renner & Bussard v. Marshall

Story, J., delivered the opinion of the court. The first question in this case is, whether the commencement of another suit for the same cause of action in the court of another state, since the last continuance, can be pleaded in abatement of the original suit. It is very clear that it cannot. A subsequent suit may be abated by an allegation of the pendency of a -prior suit; but the converse of the proposition is, in personal actions, never true. The decision of the circuit court of the district of Columbia overruling the plea was therefore correct. a *218 The next question is, whether the judgment rendered bn the overruling of the plea ought to have been peremptory, or an award oí respondeos ouster. This point is completely settled by authority. If matter in abatement be pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory as well on demurrer as on trial. b The last question is, whether judgment could be entered up for the plaintiff for the amount of his damages by the court, without a writ of inquiry. This also is-completely settled by authority' in all eases whether the action is brought for a sum certain, or which may be made certain by computation. c Judgment affirmed with costs. Footnotes [a] The exception rei judicatie applies only to final or definitive sentences in another state, or in a foreign court, upon the merits of .the case; and the rule has even been applied to the pendency of a cause in an inferior court in the same state. 9 Johns. Rep. 221. Bowe v. Joy, and the authorities there cited. Serf queers, if it were alleged that the inferior, court had jurisdiction? Fitzg., 314. But whether the suit be pending in a foreign or a domestic court, a prior suit cannot be abated by the allegation of the pendency of a suit subsequently brought. [b] See 1 Chilly on Plead. 636. [c] See 2 Williams’ Saunders, 107. Holdip v. Otway, note 2. 5 T. R. 87. Maunsell v. Lord Masareene, 8 T. R. 326. Butler v. Street. 8 T. R. 395. Nelson v. Sheridan. 8 T. R. 410. Byron v . Johnson, Dougl. 302. Theluson v. Fletcher. 1 H. Bl. 352. Rasbleigh v. Salmon. 1 H. Bl. 529. Andrews v. Blake. 1 H. Bl. 541. Longman v. Fenn. 3 Dall. 355. Brown v. Van Braam. 1 Dall. 185. Graham v. Bickham. 4 Dall. 149. Graham v. Bickham.