Wright v. Keifer

Mr. Justice Smith delivered the opinion of the court. The question presented by the record is the correctness of the ruling of the court below in sustaining general demurrer to the replication setting forth the dismissal of the prior suit, on June 7, 1905, to the plea in abatement filed December 7, 1904, alleging a former suit pending for the same cause of action. Two reasons are urged by plaintiff in error for the reversal of the judgment. First, at the time of the institution of this suit in the court below, the status of the supposed former suit was such that the plaintiff could derive no benefit therefrom, it being ineffectual for any purpose. Second, the replications alleged the dismissal of the former suit after the filing of the plea in abatement. Under the authorities we think it is settled law that a plea of a former suit pending is not available as a defense, unless the former suit is effectual and the plaintiff can obtain his remedy therein as completely as by the second suit. Branigan v. Rose, 3 Gilm. 123, 128; Phillips v. Quick, 68 Ill. 324, 325; 1 Ency. Pl. & Pr., p. 754 and note. The first replication avers that in the former suit, the plaintiff failed to file his declaration within ten days prior to the first day of the October term, 1904, of the Superior Court, the summons having been served on August 22, 1904, and that the defendant had at all times since the commencement of said suit refused to waive the provisions of section 17, chapter 110 of the Bevised Statutes of the State of Illinois, and so at the time of the commencement of this suit there was no former suit pending as set up in the plea. This replication sets up facts which show that the former suit was ineffectual to the plaintiff because the defendant, at the time this suit was commenced, was entitled to judgment as in case of a nonsuit under the statute. The replication, therefore, set up a good answer to the plea, and it was error to sustain the demurrer. O’Malia v. Glynn, 42 Ill. App. 51, 53. In Ency. of Pl. & Pr., vol. 1, p. 755, it is said: “Formerly the only question was whether at the time of suing out 'the second writ there was a writ in being, and it was held to be no answer to the plea that the first suit was ended when the plea was put in; but the prevailing rule now is that the discontinuance or dismissal of the first suit after the commencement of the second may be set up in reply to the plea, and thus defeat an abatement.” In Gage v. The City of Chicago, 216 Ill. 107, 110, it is said: “Among other objections filed by appellants, it was urged that a prior petition, recommendation, estimate and ordinance for the same improvement of the same street and having the same termini on that street were pending at the time of the institution of this proceeding and at the time of filing the objections. The city, after the filing of the objections, dismissed the prior proceeding and produced a certified copy of the order of the court wherein it was instituted, showing final discontinuance thereof. The court ruled that the dismissal of the prior proceeding avoided the objection that a former action was pending, and declined to dismiss this proceeding, but proceeded to final judgment, and this is urged as for error. Appellants refer to the ancient rule of common law pleading that a plea of another suit pending, if proven, abates the second action, and counsel for the city cite the ,later holdings, and what seems to be the current of modern authority, that the dismissal of the prior action, even after the plea, avoids the abatement of the second suit.” In New York it is settled law that a discontinuance of the first suit after the commencement of the second suit may be shown in answer to the plea, and in this respect the stringency of the ancient rule has been relaxed. Porter v. Kingsbury et al., 77 N. Y. 164, 167. In Willson v. Milliken, 42 L. R. A., 449, 461, the Kentucky Court of Appeals say, after stating the old rule: “The more modern rule seems to be that the objection of a former suit pending is removed by its dismissal or discontinuance, even after plea in abatement in the second suit. Warder v. Henry, 117 Mo. 530; Trawick v. Martin Brown Co., 74 Tex. 522; Grider v. Apperson, 32 Ark. 332; Findlay v. Keim, 62 Pa. State, 112, 117; Moorman v. Gibbs, 75 Iowa, 537; Nichols v. State Bank, 45 Minn. 102, and numerous others. We think this a more just and reasonable rule, and so hold to be the law. ’ ’ We are of the opinion that the cases cited above state the modern rule upon this question. Applying this rule, the replications showing the dismissal of the prior action after the plea was filed were good, and the demurrer should have been overruled. The judgment is reversed and the cause is remanded. Reversed and remanded.