Hornfager v. Hornfager

6 How. Pr. 279

Opinion

Parker, Justice.

Where it appears by the complaint that there is another action pending between the same parties for the same cause, the remedy is by demurrer {Code, § 144, sub. 3). When any of the matters enumerated in section 141 do not appear upon the face of the complaint, the objection may be taken by answer {Code, § 147). This is applicable to a suit brought by a defendant for partition. It is a suit between the same parties for the same cause.

The remedy is to set forth in the answer in the suit last commenced, the fact of the pendency of the first suit commenced.

Motion denied, but without costs.