Billups v. Gilbert

ANDERSON, J.

The principle is well settled that the pendency of a prior suit for the same thing, or, as is generally said, for the same cause of action, in a court of competent jurisdiction, between the same parties, will abate a later suit, because the latter is deemed unnecessary and vexatious.—Foster v. Napier, 73 Ala. 595. This rule, however, does not extend to a bill in equity as grounds for the abatement of an action at law. It may afford sufficient grounds for requiring the plaintiff to elect which action he will first proceed Avith, but it is not deemed a ground for the abatement of the action of law. This identical question, as decided in this opinion, Avas settled in the recent case of Southern R. R. Co. v. Hayes, 62 South. 874, and is also supported by the case of Humphries v. Dawson, 38 Ala. 204.

The case relied upon by appellant (Foster v. Napier, supra), was dealing with the pendency of another action in a court of law, and the rule there stated was correct, except it did not note that said rule did not apply to a pending bill in equity, but which fact was clearly brought out in the case of Humphries v. Dawson, supra.

The trial court properly sustained the demurrers to defendant’s special pleas A and B, and the judgment of the circuit court is accordingly affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.