McNamara v. New Horse Creek Coal Co.

160 S.W.2d 625, 290 Ky. 276, 1942 Ky. LEXIS 377

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 27, 1942
• Status: Published

Opinion

Opinion of the Court by

Van Sant, Commissioner

— Affirming.

■An action will be abated where it is shown that another action is pending in this state between the same parties for the same cause. Section 92, Civil Code of Practice. If the two actions are pending in the same court, the court will take judicial notice of the former action and read the fact of its existence into the petition. Maynard v. Allen, 276 Ky. 485, 124 S. W. (2d) 765. At the time of the commencement of this action there was pending in the same court an action between the same parties for the same cause, which action is now pending in this court on appeal. Since, under section 92 of the Code, objection to the petition may be raised by special demurrer if the adverse pleading shows ground for abatement of the action, the lower court properly considered the existence of the then pending action with the petition, and rightly sustained the special demurrer.

Wherefore, the judgment is affirmed.