National Express & Transportation Co. v. Burdette , 7 App. D.C. 551 ( 1896 )

Mr. Justice McComas,

of the Supreme Court of the District of Columbia, who sat with the Court in the hearing-of this cause in the place of Mr. Justice Morris, delivered the opinion of the Court:

It is objected to the replication that it is double in that it attempts to set up two alleged answers to the plea in abatement, namely, that the said first suit was ineffectual and that it was discontinued after plea pleaded. Perhaps superfluous facts are stated, but the matters stated constitute a single reply. It is alleged that the first suit was ineffectual, and that it was discontinued because it was inffectual. The point was the ineffectuality of the former suit, the rest was inducement and explanatory matter. The single point may consist of several facts if they be dependent and connected. The ineffectuality of the former suit and the discontinuance because of its ineffectuality, taken together, constitute one proposition. Where the facts asserted in the plea are not denied but the replication attempts to avoid them, the replication may contain as many facts as are necessary to make out the point which avoids the plea. The replication may contain more facts than are necessaiy to be stated, but superfluity does not vitiate. The vice of duplicity in pleading consists in relying upon two or more distinct grounds, either of which, independent of the other, would constitute a good defence to the action. No matters, however multifarious, will operate to make a pleading double that together constitute but one connected proposition. The rule of good pleading requires that the replication be confined to a single point, not to a single fact. It is true that this replication consists of several parts, yet all taken together constitute but one point. All the facts tend to establish but one answer. . Therefore it is not double. Russell v. Rogers, 11 Wendell (N. Y.) 357 ; 1 Chitty Pleading, star pages 605, 650 ; Gould’s Pl. 420, 424,secs. 3, 9; Marker v. Brink, 24 N. Y. Law, 344; Stewardson v. White, 3 H. & McH. 456; Holland v. Killer and Lathrop, 16 Ill. 134.

Duplicity was always a defect of form merely and open to attack only on special demurrer; it was not a substantial defect.

Where special demurrers have been abolished, duplicity ceases to be a vice which can be attacked by demurrer. In this jurisdiction a demurrer must be for matter of substance and not for mere matter of form; special demurrers have been abolished. United States, use of Alexander, v. Ritchie, 3 Mackey, 163 ; 1 Poe’s Pleading and Practice, 736.

Rule 28, section 3, Common Law Rules of the Supreme Court of the District of Columbia provides that in all such cases of defects of pleadings, which were the subject of special demurrer at common law, the defect may be taken advantage of by motion to strike out. The learned counsel for the appellee answers that the decision in United States, use of Alexander, v. Ritchie, approved a rule existing eleven years ago, whereas the present rule of the same court respecting demurrers went into effect in 1894. We have examined the rule of court in force in 1889 and find it in totidem verbis the present rule in respect of the form and effect of a demurrer in the Supreme Court of this District. The present rule adds several provisions, among these the motion to strike out in lieu of a special demurrer. Nor does section 954 of the Revised Statutes help the contention of the appellee. That is a remedial statute which must be construed liberally to accomplish its object. It not only enables, but it enjoins, the court to disregard the niceties of form which often stand in the way of justice. This statute in terms authorized the courts to impose conditions and prescribe rules to effect its general purposes. Parks v. Turner, 12 Howard, 46.

The present rule of court requiring a demurrer to be for matter of substance is within the purview of this statute and not in violation of it. It is not too late for the appellant to object to the appellee’s demurrer because it is a special demurrer. • This special demurrer was sustained, and from that judgment this appeal was taken. The appeal, therefore, directly involves the nature and effect of this demurrer.

The replication to this plea in abatement admits that, if not nominally, at least substantially, the party plaintiff is the same in each suit. It admits, and it is apparent that the real party in interest is, the plaintiff in both cases ; that he represents the same interest, asserts the same right and claims the same relief against the same defendant; that if the pending suit had been effectual and had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties. Watson v. Jones, 13 Wallace, 705 ; Bank of North America v. Wheeler, 28 Conn. 441.

The replication which thus confesses the substantial identity of the former and the present suit alleges matter in avoidance of the plea in abatement. The demurrer to this replication admits such matters, and thus admits that the prior suit was ineffectual by reason of the fact that the same was brought in the name of John Glenn, trustee, and not in the name of the National Express and Transportation Company for the use of said John Glenn, trustee, and that the matter at issue between John Glenn, trustee, and this defendant, could not be tried and decided in the prior action, and that no judgment could have been recovered thereon. So much, at least, must be taken to be admitted by the demurrer.

It is clear that the suit of “John Glenn, Trustee, v. Burdette,” was like the suit of “John Glenn, Trustee, v. Marbury," filed on the same day, in the same court, and carried from that court to the Supreme Court of the United States, and there held to be ineffectual.

In Glenn v. Marbury, 145 U. S. 511, Mr. Justice Harlan, speaking for the court, said: “ We concur entirely in the views expressed by Mr. Justice Cox, speaking for the court in Glenn v. Busey, where can be found a careful and elaborate discussion of this question. In harmony with the decision in that case, we hold that the present suit cannot, consistently with the principles of the common law, which is the law upon this question for the District of Columbia, be maintained by the plaintiff in his own name as trustee.”

In Glenn v. Busey, 5 Mackey, 249, the court said: “ The plaintiff is entitled to sue for the unpaid subscriptions to the extent called for, and the question is, whether he shall sue in his own name or in that of the corporation to his own use. By the law of this District he must do the latter.”

The former suit of Glenn, Trustee, v. Burdette, is so very like the suit of Glenn, Trustee, v. Busey, that we conclude that the former suit pleaded in abatement of the present suit was ineffectual.

The general principle is well settled that the pendency of a prior suit between the same parties for the same cause of action or claim of right will abate a later suit, because in such a case the last is deemed unnecessary, and therefore vexatious. The reason for this rule is that the second suit is unnecessary - and consequently oppressive. Where the first action is ineffectual, so defective that no recovery can be had, and the second action is necessary for securing the plaintiff’s rights, the reason of the rule fails, and the pendency of a former suit will not abate the second action. The second action is not in such case deemed vexatious. Rogers v. Harkins, 15 Ga. 274; 1 Saund. Pl. & Ev. 19; Gould’s Pl. 285 ; Quinsburg Bank v. Tarbox, 20 Conn. 515; Burnett v. Chase, 21 N. H. 585 ; Arch. Pl. 320.

In such a case the former suit was as no suit, and in legal contemplation there was not another suit pending for the same cause of action at the time the present suit was brought. Phillips v. Quick, 68 Ill. 325.

Hence it is that courts in modern times have somewhat modified the rule, and instead of regarding the second suit as necessarily vexatious, have gone into the inquiry whether in fact it was vexatious. It is upon this principle that the courts have almost uniformly proceeded in holding that the second suit is not vexatious when it appears that the prior suit must have been ineffectual, and consequently that it is no ground for abating the second suit. Downer v. Garland, 21 Vt. 365 ; N. & W. Railroad v. Neumally, 88 Va. 549; Hatch v. Spofford, 22 Conn. 494; Adams v. Gardner, 13 B. Monroe (Ky.) 197.

When the first suit is discontinued before the defendant is called on to plead, there is abundant authority to sustain this position. But it has been further frequently decided that where the second suit is necessary to secure the demand by reason of the ineffectuality of the first suit, the first suit may be discontinued, after plea in abatement filed, so as to avoid the effect of that also. Leavitt v. Moore, 54 Md. 618 ; Durand v. Carrington, 1 Roct. 168; Rogers v. Harkins, 15 Ga. 270; Toland v. Tichenor, 3 Rawle, 322; Findley v. Keim, 62 Pa. 118; Beale v. Cameron, 3 How. Pr. Rep. 414.

In Chamberlain v. Eckhart, 2 Bissell, 125, Justice Drummond held that a replication that, after the filing of the plea in abatement, the suit which had been pending had been dismissed was a good replication; that the rule here contended for by the appellee’s counsel is not the present doctrine, for, said he, “ when the suit was commenced there was an obstacle in the way. When the plea was pleaded there was the same obstacle. But now, when the replication is filed, that obstacle is removed.”

It is true Chitty says the plaintiff cannot, after a plea in abatement of the pendency of a prior suit, avoid the effect of a plea by discontinuing the first action which was pending at the time of the plea. I Chitty Pl. (14 Amer. ed.) 454. This statement implies that a discontinuance of the prior suit before the plea in abatement was filed would avoid such plea. The cases which thus limit the right to discontinue a prior suit for the purpose of avoiding the abatement of the second suit follow C. J. Parsons, 5 Mass. 174, in the doctrine that the merits of a plea, so far as they depend on the allegation of facts, must be determined by the law and the facts existing when the plea is pleaded, and that a plea cannot be confessed and avoided by a posterior fact done by a party not pleading it.

. We believe it more just to hold that where the record shows that the former suit was a nullity or even ineffectual, and was therefore discontinued, the ineffectuality is as good reply before as after plea .pleaded. The old doctrine, that if the first suit is pending the defendant is presumptively vexed and oppressed by the second suit, has been relaxed, and defects in the first suit which prevent the plaintiff from recovering judgment have been held sufficient to defeat a plea in abatement of a former suit pending. The presumption was that the first suit was effective and afforded an ample remedy to the party, and hence the second suit would be presumptively vexatious. But courts in modern times have held that the second suit is not vexatious when it appears that the prior suit must have been ineffectual. Downer v. Garland, 21 Vt. 366.

Indeed it has been held that the presumption is when a party brings a second action while a prior one for the same cause is pending, that he labors under some disadvantage in the first suit, which renders the second necessary; and the discontinuance of the first action tends to negative the presumption that the proceeding was intended to vex and harass the other party. Adams v. Gardner, 13 B. Mon. (Ky.) 198.

In the present case the replication shows and the demurrer admits that the first suit was ineffectual, and was discontinued after the plea in abatement because it was ineffectual.

We need not, therefore, in this case, consider the legal presumptions respecting a pending action. It is sufficient to say that if such a replication that a suit was ineffectual and for that reason was discontinued before a plea in abatement, should be held good on the ground of ineffectuality, the same ineffectuality justifies this court in holding such replication good when the suit was discontinued by reason of ineffectuality after the plea in abatement was filed. We hold that because the first suit was ineffectual the second was not vexatious, either before or after the plea in abatement. The rule ceases when the reason of the rule ceases. Whether or not the defect of the first suit could have been cured by amendment we need not proceed to discuss, because the demurrer admits that the first suit was ineffectual. Even if the first suit could have been amended there is no rule of law which compels a plaintiff to amend his complaint. The plaintiff may resort to another action. Geery v. Webster, 11 Hun, (N. Y.) 430; Reynolds v. Harris, 9 Cal. 341.

While the law is careful to shield the defendant from oppression and vexation it does not prevent a plaintiff from using the means in his power to collect his debt. A plea in abatement is a dilatory plea. If the plaintiff dismissed his first suit as soon as he safely could and was compelled to bring and maintain the second to avoid the bar of the statute of limitations, the court may exercise a wise judicial discretion, if it should not be reluctant to refuse to, grant such a plaintiff the opportunity for a fair and speedy trial. Hatch v. Spofford, 22 Conn. 494; N. & W. Railroad v. Neumally, 88 Va. 549.

For these reasons the judgment of the court below must be reversed with costs, and the cause remanded to that court for further proceedings.