Berger v. Moessinger, Fritsch & Co.

SMITH, J. F. J. Berger et al., the defendants below, by their answer, first denied all the material facts set out in the petition, and in addition averred “that at the commencement of this action there was and still is another action pending between the same parties, and for the same subject-matter.” No reply was filed. The case proceeded to trial, and verdict was rendered for plaintiffs. The bill of exceptions certified to contain all the evidence, shows that no testimony was offered by either party as to any such previous pending action. A motion for a new trial was filed by the defendants, on the ground that the verdict was contrary to the evidence, and that there was error in the rulings of the court at the trial, but no claim seems to have been asserted on the ground now urged until the case came into this court. We are of the opinion that if the answer of the defendants, which was not denied by reply of the plaintiffs, made a good defense to the action, and was well pleaded, that it could now be taken advantage of, and that the judgment in such case would have to be reversed. But we think that the answer was not sufficient. Technically it did not follow the language of sec. 5068, Rev. Stat., which makes it a good ground of demurrer to a petition where it appears on its face “that there is another action pending.between the same parties for the same causeand if it does not appear on the face of the petition, the fact, if true, makes a good defense, and may be set up by answer. It may be that the averment of this answer, that it was for the same subject-matter, is equivalent to the same cause. But it wholly failed to state where, or in what court such action was pending. It may have been in a foreign country, in a court of the United States, or of a sister state, and this does not constitute a defense. 5 Sanf., 330; 31 Barb., 364; How. Prac.. Rep. 51; and the form given.for this defense in Swan’s Plead. and Prec., 510, Bates’ Plead., 905, specifies the court of the state of Ohio in which the action is pending. Judgment affirmed, with costs, but without penalty. (Other grounds of error assigned were overruled.)