Downer v. Garland , 21 Vt. 362 ( 1849 )

The opinion of the court was delivered by

Kellogg, J.

That the pendency of a prior suit between the same parties and for the same cause of action is ground of abatement of the second suit is a doctrine of the common law. And this doctrine is founded upon the supposition, that the second suit is unnecessary, oppressive and vexatious. Such are the reasons assigned in the books for the adoption of the rule. It is based upon the supposition, that the first suit was effective and available and afforded an ample remedy to the party, and hence the second suit would be unnecessary and consequently vexatious. This being the reason for the adoption of the rule, there would seem to be no propriety in extending and applying it to cases, where the reason does not exist. It would be much more consonant to reason, to apply the maxim, that, when the reason for the rule ceases, the rule itself should eease. 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 of whether, in fact, it was vexatious. It is upon this principle, that the courts in Connecticut have 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. This doctrine is laid down in the case cited from Root’s reports, cited by Judge Gould in his treatise upon pleading, and is recognized by the Superior Court in 18 Conn. 290, as settled law in that state. And we think the rule thus established in Corn necticut is founded in reason and sustained by authority.

In New York the rule seems to have been somewhat different. In that state it has been held, and professedly upon English authority, that when the defendant pleads in abatement the pendency of another action, the plaintiff may enter a discontinuance in the first suit before a replication is filed to the plea in abatement, and that without leave of the court, and thereby sustain a replication of nul tiel record. Marston v. Lawrence, 1 Johns. Cas. 397. This was held to be matter of right, and the court cited, as sustaining the position, Barnes’ Notes 257, 1 Leon. 105, and 1 Sellon’s Practice 304.

So it was held by this court, in Hill v. Dunlap, 15 Vt. 645, that, if one commence a suit by process which is defective, he may discontinue it and bring fresh suit, and the second suit will not be considered vexatious; and that the former suit may be discontinued by oral notice. The court farther say, “ we have adopted the rule, which obtains in Connecticut and some of the other states, that, if the party bring a defective suit, he may, upon discovering the defect, discontinue that suit and bring another, and this shall not be considered vexatious. It will be seen, upon examination, that the case of Hill v. Dunlap is very similar to the one at bar. The only difference between them is, that in the former there was oral notice of the discontinuance and the suit was not entered in court, and in the latter the notice of discontinuance was in writing and the suit had been entered in court, before the defect was discovered. In the former ease the first process was presumed to be defective; in the latter it was proved to be so. It was fatally defective, and the defendant had pleaded the defect in abatement. It is apparent, that that suit must have been ineffectual, had it been pursued. The only difference relied upon is, that the suit in the present case, the pendency of which is pleaded, was entered and pending in court at the commencement of the. present suit. This difference, we think, is unimportant. The fact, that the suit had been entered in court and no discontinuance entered upon the docket, did not deprive the party of the power of discontinuing it at any time, subject, however, to the payment of costs to the adverse party, — which was done in the present case.

Nor do we think it was indispensably necessary, that entry of discontinuance should have been made upon the record prior to the bringing a fresh suit. The written notice delivered to the defendant was a virtual discontinuance of the suit, so far, at least, as to prevent its being cause for abating the second suit. It put it out of the power of the plaintiff to legally proceed farther in the suit; and had he, after such notice, entered up judgment, the same would have been set aside upon audita querela.

It has sometimes been made a question, as to when a suit could be said to be first pending, — whether at the purchase of the writ, the service of it, or the entry of it in court. But in this state it is believed to have been uniformly held to be pending after service. And if suits after service and before entry can be discontinued by notice from the plaintiff, as in Hill v. Dunlap, we do not see, w'hy the same may not be done after entry, if there should exist a proper occasion for it.

Upon the whole, we are satisfied, that there is no sufficient ground for reversing the judgment of the county court, and the same is therefore affirmed.