Myers v. United Services Automobile Ass'n

On Motion for Rehearing.

Movant asserts that the opinion overlooks the fact that although the answer to the declaratory judgment action and the third party complaint were filed on the same day that in fact the third party complaint was filed first.

This fact is not controlling. Under Section 13 of the Civil Practice Act and the authority previously cited, Myers must have filed his third party complaint prior to the time the declaratory judgment action was commenced, not prior to the time an answer was filed to the declaratory judgment action. Once the declaratory judgment action began Myers had to counterclaim there and not in another action.

It is also argued that the original suit was pending prior to the declaratory judgment action. However, Section 13 (a) provides that a compulsory counterclaim need not be plead if "at the time the action was commenced the claim was the subject of another pending action.” The original suit in no way involved any claim of Myers against United Services. Thus, at the time of the commencement of the declaratory judgment action, this claim was not the subject of a pending action.

Motion for rehearing denied.