Sidebottom v. Mitchell , 1967 Ky. LEXIS 77 ( 1967 )

SEPARATE CONCURRING OPINION

STEINFELD, Judge.

I concur in the result but respectfully disagree with the statement in the opinion which is:

“We are not convinced that any of the reasons relied on by the circuit court is wholly valid * * *

One of the reasons was “that relief should have been sought by amended complaint in the divorce action”. My judgment is that this is a valid reason for dismissing the complaint (at least without prejudice) since the relief sought was to recover on a claim in the same court which previously had carefully reserved the adjudication of that claim.

I consider the circumstances here distinguishable from the complications involved in Martin et al. v. Turner, Ky., 115 S.W. 833 (1909).

Our policy is to avoid a multiplicity of actions. Roy v. Roy et al., 246 Ky. 36, 54 S.W.2d 362 (1932). We do not permit a claimant to split his cause of action. Cassidy v. Berkovitz, 169 Ky. 785, 185 S.W. 129 (1916); McDonald v. Equitable Life Assur. Soc., 269 Ky. 549, 108 S.W.2d 184 (1937) ; Nat’l Bond & Inv. Co. v. Withorn, 281 Ky. 318, 136 S.W.2d 40 (1940). We now encourage the, joinder of claims in one action CR 18.01. Leimer v. Woods, C.A.8, 196 F.2d 828 (1952). “There should be one action only to settle the rights of the parties, when all rights can be properly determined in a single action.” Colson v. Pelgram, 259 N.Y. 370, 182 N.E. 19 (1932).

I consider the new suit a vexatious type of litigation since it is a second action between the same parties based on the same cause. 1 C.J.S. Actions § 21, p. 1062. Dismissal for that reason was proper.