Jacobs v. Lewis , 47 Mo. 344 ( 1871 )

Currier, Judge,

delivered the opinion of the court.

This suit was brought to foreclose a mortgage. The proceeding is under the statute (2 Wagn. Stat., ch. 99). The answer admits the execution of the note and mortgage sued on, and then alleges, as ground of abatement, the pendency of a prior foreclosure suit between the same parties, founded upon the same note and mortgage, but for a different cause of action.

The note in suit was payable in installments of $200 each; that is, $200 was payable annually during the lifetime of the payees, as the interest on $2,000. The first foreclosure suit was based upon the first of these installments, while the present suit is based upon the second, which had not matured at the time the first suit was brought. In each case judgment is sought against the mortgaged premises, as also a general judgment for any unsatisfied balance. Whether the pendency of the first of these suits furnished sufficient ground for abating the second, is the question to be decided.

The ground upon which courts proceed in the abatement of subsequent suits, as was said in State v. Dougherty, 45 Mo. 294, is that they are unnecessary, and are therefore deemed vexatious. Where the subsequent suit is founded upon a different cause of action, as in the case now before the court, the principle has no application; for in that condition of things there is no ground for regarding the subsequent suit as vexatious. It is of no importance that the evidence is the same as respects the instrument sued on. The identity of the parties and cause of action is what is material. In the case before us the parties are the same as in the prior suit, and the note and mortgage are the same, but the cause of action is different. The causes of action are as separate and distinct as they would be if founded upon two separate notes. The pendency of the first suit is therefore no ground for abating the second.

It is true that the mortgaged property can be sold but once under a judgment of foreclosure. (Buford v. Smith, 7 Mo. 489.) Whether the creditor may have successive judgments against the property, and successive sales of different parts of it under the respective judgments, are questions not raised by the present record, and no opinion is expressed in respect to them.

The judgment of the District Court is reversed and that of the Common Pleas affirmed.

The other judges concur