Leavitt v. Mowe

Irving, J., delivered the opinion of the Court. On the 11th day of September, 1878, the appellant brought this action of assumpsit against the appellee in the Circuit Court for Baltimore County. The declaration -contained the ordinary money counts, together with counts ■on three several promissory notes. ⁶¹⁶ On the 27th of September, the defendant pleaded in abatement, that, before the commencement of this action,. “ to wit, on the sixth of July, 1878, in the Superior Court of Baltimore City, the plaintiff had impleaded the defendant on the same promises and undertakings, and that said suit was pending, and undetermined in the Superior Court of Baltimore City, at the commencement of this suit.” The appellant (plaintiff below) replied that “ the said former suit in the plea mentioned was not pending at the time of filing of said plea in this suit, in manner and form as the defendant (appellee here) in. his plea had alleged,, but that the same has been discontinued by an order filed in the said Superior Court of Baltimore City, on the 17th of September, 1878.” To this replication a demurrer was. entered, and the same having been sustained, and judgment having been entered for the defendant, appeal was taken. Before proceeding to consider the question raised by the demurrer it is proper to note, that the record discloses, that, on the 15th of July, 1878, the appellee filed, in the Superior Court of Baltimore, a motion, verified by affidavit, to dismiss the suit brought against him in the Superior Court on the 6th of July, 1878, because the defendant was not a resident of Baltimore City, hut resided in Baltimore County.

We think there was error in the ruling of the Circuit Court, in sustaining the demurrer to the plaintiffs replication ; for if the appellee’s plea had been perfect, the replication would have been a good reply to it. The-demurrer mounts up to the first error in pleading, and the plea being bad, in omitting to allege the pendency of the prior suit at the time of plea pleaded, the demurrer should have been overruled. If in order to make-a plea of prior suit brought for the same cause of action available as a good plea in abatement, it was necessary that the prior suit he pending and undetermined at the ⁶¹⁷ time of plea pleaded, it was also necessary that it should he so averred in the plea. There is some conflict of authority on this subject, hut the great weight of authority establishes the doctrine that the first suit must he pending at the time of plea filed, to effect an abatement of the-second suit, and that if the first suit he dismissed before-plea pleaded, it will prevent the abatement of the second suit.

Mr. Evans in his valuable work on Practice in this State, page 250, expresses the belief that the case of Parker vs. Collard, (2 N. H., 36,) would he followed as the law of Maryland. We do not think that decision is in accord with the hitherto prevailing practice in Maryland. It is at variance with the rule laid down by Mr. Chitty in his work on Pleading, and which is followed in