Grenada Bank v. Bourke ( 1915 )

Cook, J.,

delivered the opinion of the court.

This suit was instituted in the circuit court of Grenada county by the appellant against the appellees on a promissory note. Appellees interposed a plea in abatement setting up a pending suit in the chancery court, in which suit it was alleged that the same questions were involved between the same parties. Appellant filed a replication to the plea in abatement averring, among other things, that since the institution of the present suit the case had been disposed of in the chancery court. To this replication a demurrer was interposed and sustained by the court.

Briefly stated, the point for our determination is, does the fact that the suit in the chancery court was pending at the time suit in the circuit court was begun abate this suit, although the suit in the chancery court had been finally disposed of by dismissing the bill of complaint against plaintiff below, appellant here, before the replication was filed to the plea in abatement?

We answer this question in the negative. We hold that the demurrer to the replication should have been overruled. ■

“While at the common law the rule was to sustain a plea in abatement of another suit pending, if it was true at the time the plea was filed, but the .tendency of the later cases, and a preponderance of authorities sustain the doctrine, that it is a good answer to the plea of pendency of a prior action for the same cause that the former suit has been discontinued, whether the discontinuance be before or after the filing of the plea. Under this doctrine the plea will be overruled, unless the prior suit is pending at the time of the trial of the second.” 1 Cyc. 25.

“The modern tendency is to regard the objection as removed if the dismissal or termination occurs after the plea is filed. And it has been held that dismissal at any time before the hearing on the plea, or even at the trial of the second action, is not too late.” 1 Standard Proe. 1011..

We find nothing in onr hooks contrary to the rules just quoted, but we do find that pleas in abatement of the -character here involved are looked upon with disfavor by this court. Wood Preserving Co. v. Myer, 76 Miss. 586, 25 So. 297.

The ease is reversed, the demurrer overruled, and the cause is remanded for further proceedings in accordance with this opinion.

Reversed and remanded.