State ex rel. Bashe v. Boyce

McSherry, J., delivered the opinion of the Court. There is but a single question involved in this appeal. It arises upon the following facts: The appellee owned a wharf which was under lease to the Consolidated Coal Company. By reason of the wharf being, as alleged, out of repair, Joseph Bashe was injured, and shortly afterwards' died from the effects of that injury.

The widow, children, and mother of the deceased brought suit against the coal company, the lessee of the wharf; and whilst that suit was still pending and undisposed of, they brought another action, for the same cause, against the appellee, the owner of the wharf. Both suits were instituted in Baltimore City. To the declaration filed in the second action the appellee pleaded in abatement the pendency of the prior suit against the coal company. The appellants demurred to the plea, and the Baltimore City Court entered judgment on the ¹⁴² demurrer for tbe appellee.

From that judgment this appeal has been taken. In support of the plea, reference was made by the appellee to 1 Chitty Pl., 100; Boyce vs. Bayliffe, 1 Camp., 60; and Rawlinson vs. Oriett & Benson, Carthew, 96. The text of Mr. Ohitty relies only on the case in 1 Gamp., which was decided by Lord Ellenborough, at nisiprius. The case in Garthew states that Holt, Ch.

J., dubitabit, but the other three Judges inclined that the jilea was good. Much as we respect the opinion of Mr. Ghitty, we think the great weight of authority is against the sufficiency of the jilea. . The general rule is this: Where the two suits are for the same cause of action, and between the same parties, the pendency of the first may be pleaded in abatement of the second. The identity of the subject-matter and of the parties must be alleged.

Poe Pl., 502: Cook vs. Burnley, 11 Wall., 659 ; Bryan vs. Scholl, 109 Ind., 367 ; and the two suits must be pending in the Courts of the same State. Seevers vs. Clement, 28 Md., 426 . Now, whilst the cause of action is alleged to be the same in both suits, the defendants are admitted by the plea to be different; and therefore the plea is undoubtedly bad, unless an exception to the general rule obtains in the case of joint tort-feasors. No reason is perceived for the existence of such an exception, and no authorities have been cited to support it other than- those already alluded to.

It may be regarded as very generally accepted law in this country, that where two or more persons jointly commit an actionable tort, the injured party may join them all in one action, or he may bring a separate action against each, though he can have but one satisfaction. He has his election de