Middlebrook v. Travis ( 1893 )

O’BRIEN, J.

Apart from the question of costs, in view of the statement upon the argument, which was not denied, that the premises have been sold for a satisfactory sum, no useful purpose is to be served by interfering with the judgment under which such sale took place. The defendants (appellants) insist, that, having pleaded the pendency of another action, this was fatal to the rendering Of a judgment herein. It-appears that the summons in both actions were served on the same day, and of the 27 parties to both actions only 10 are common to both; the difference in parties resulting from the plaintiff in this action having included the husbands of the tenants in common as parties, while in the action claimed to have been first commenced and pleaded in bar such husbands were not made parties, but tenants under lettings of some part of the premises were included as parties defendant. While doubt has been expressed as to whether husbands of the owners of the fee are necessary parties, and while it is unquestioned that they are proper parties, it is evident that in these possessory actions tenants under lettings in possession should be joined in the action. The only point, however, urged upon this appeal, is as to the effect of the defense of a former action pending upon the right to enter the judgment appealed from. The summons and the complaint in the action thus referred to were dated before the plaintiff therein had acquired any right to commence such action; and, if we take the date of the commencement of the action to have been at the time of the service of the summons, then, as the summons in this action was served on the same day as the summons and complaint in the other action, and as the law does not regard fractions of a day, the judge was not precluded, upon this action being first ready for trial, from proceeding to judgment. Moreover, when this action was commenced, there was no action pending against the plaintiff, because she was not served with the summons in the other action until after she had commenced her own by the service of a summons on certain of the defendants. We think, therefore, that, as it appeared upon the trial that a prior action was not pending between the same parties, the defense was not made out, and judgment was properly awarded to plaintiff. The judgment appealed from should therefore be affirmed, with costs and disbursements.

FOLLETT, J., concurs.