MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment rendered against him on the pleadings, in an action brought by him to recover damages alleged to have been caused to his property by a change by the defendant in the grade of its streets upon which the property abuts. The pleadings are somewhat voluminous. We shall not undertake to give a synopsis of them. The following statement of facts gathered from them is sufficient to present the question submitted for decision: Plaintiff’s property consists of a lot situate on the northwest comer of West Caledonia and Jackson streets, within the corporate limits of defendant city. The building thereon was erected in 1901 to [132]*132conform to the grade of the streets as it then was. During the year 1904 the defendant caused the streets to be graded by raising them to the height of somewhat more than 6% feet above the former grade. On May 31, 1905, the plaintiff commenced an action against the defendant to recover the damages claimed in this cause. The action was tried on February 26, 1909. The plaintiff was nonsuited. This action was designated in the files of court as No. 11,699. Judgment finally disposing of the cause was entered on January 26, 1911. This judgment dismissed it without prejudice. In the meantime, on April 28, 1909, the plaintiff had commenced another action to recover upon the same cause of action. This was designated as cause No. A-2026. The defendant interposed the defenses that cause 11,699 was still pending and undetermined, and that the cause of action alleged therein was barred by the limitations prescribed by sections 6447 and 6449 of the Bevised Codes. At the close of the evidence, the court on motion of defendant directed a verdict in its favor, and judgment was on March 14, 1910, entered accordingly. The present action was commenced on January 28, 1911. In its answer the defendant interposed three affirmative defenses: (1) That the cause of action was barred by the provisions of sections 6447 and 6449 of the Be-vised Codes; (2) that cause A-2026 was still pending and undetermined; and (3) that in another action theretofore tried in the district court of Silver Bow county, in which the parties plaintiff and defendant in this action and the cause of action alleged are identical, a judgment had been rendered and entered upon the merits, and that this judgment, never having been reversed, modified or set aside, is res judicata as to the right of plaintiff to recover in this action. The judgment relied on in this latter defense is the judgment rendered in cause A-2026 on March 14, 1910. In his reply the plaintiff does not deny that cause A-2026 is still pending or allege that the judgment therein has been satisfied, nor does he allege facts or circumstances showing that such is the case. He denies that it was rendered on the merits, and then alleges that the court directed [133]*133the verdict therein for the plaintiff, upon the ground and for the sole reason that the action having been commenced while cause No. 11,699 was still pending and undetermined, it was not commenced in pursuance of the provisions of section 6464, Revised Codes, and hence was barred by the statute of limitations. Counsel for defendant in their motion demanded judgment on several grounds, among others that the reply of plaintiff admitted that another action, viz., cause A-2026 was still pending. We think that the motion for judgment was properly-granted.
It was incumbent upon the plaintiff to put in issue the allegations of defendant’s. special defense, or to allege facts from which it would appear prima facie that the former action had been finally terminated. If it appears from the face of a complaint that another action is pending between the same parties [1] for the same cause, the pleading is open to objection by demurrer- (Rev. Codes, see. 6534). The objection may be taken in the words of the statute. (Sec. 6535.) When this fact does not appear, the objection may be taken by answer. (Sec. 6538.) In either case the pendency of the former action is a conclusive reason why the court shall not entertain the latter. The fact •that judgment has been entered in the former action is not conclusive that it has been finally determined. An action is commenced when the complaint is filed. (Sec. 6457.) “An action is deemed to be pending from the time of its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” (Sec. 7188.) Though a judgment is defined as the final determination of rights of the parties in an action or proceeding [2] (see. 6710), the action must be regarded as still pending, within the meaning of section 7188, supra, until the happening of one or more of the events enumerated therein. It was formerly the rule that it was not a good answer to a plea in abatement that the former suit had been dismissed when the latter was commenced (1 Ency. PI. & Pr. 755), but since pleas in abatement are not favored, the weight of authority now lends sup[134]*134port to the rule that the discontinuance or dismissal of the [3] former action may be alleged as a sufficient reply to the plea at any time prior to the trial, and thus an abatement prevented. (1 Ency. of PI. & Pr. 755; 1 Cyc. 25; Moore v. Hopkins, 83 Cal. 270, 17 Am. St. Rep. 248, 23 Pac. 318; Dyer v. Scalmanini, 69 Cal. 637, 11 Pac. 327; Evans v. Johnston, 115 Cal. 180, 46 Pac. 906.) The essential averment in the answer or plea is that another action for the same cause is still pending between the same parties. It would seem that if the demurrer may follow the language of section 6538, the answer need not be more explicit. But be this as it may, the sufficiency of the answer in this ease is not questioned. Therefore, in order to present [4] a triable issue it was necessary either that a denial be interposed by the reply, or that the facts as they actually existed be alleged. So far as the reply shows, cause A-2026 may still be pending on a motion for a new trial or on appeal. If so, it is still pending within the meaning of section 7188, supra.
(Submitted December 12, 1911.
Decided January 11, 1912.)
Judgment on Merits — Abatement—Pleas in Bar.
1. Where a plea in abatement, — that another action is pending between the parties for the same cause,- — -is joined with pleas in bar, 1. e., the statute of limitations and res judicata, — and the judgment recites that it was rendered on the merits, such judgment, if permitted to stand, is a bar to a subsequent action, even though the decision of the questions arising upon the pleas in bar was erroneous.
Judgments — Dismissal of Action — Statute of Limitations.
2. One who within one year after an aetion is dismissed without prejudice commences a new action, brings himself within the privilege accorded by section 6464, Revised Codes, which provides that if an action is originally commenced within the time limited therefor, and is terminated in a manner other than by a voluntary discontinuance, a dismissal of the complaint for neglect to proceed with the action, or by a final judgment upon the merits, a new one may be commenced within one year after such termination.
[134]
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
This is an appeal by plaintiff from a judgment rendered against him on the pleadings, in an action brought by him to recover damages alleged to have been caused to his property by a change by the defendant in the grade of its streets upon which the property abuts. The pleadings are somewhat voluminous. We shall not undertake to give a synopsis of them. The following statement of facts gathered from them is sufficient to present the question submitted for decision: Plaintiff’s property consists of a lot situate on the northwest comer of West Caledonia and Jackson streets, within the corporate limits of defendant city. The building thereon was erected in 1901 to [132]*132conform to the grade of the streets as it then was. During the year 1904 the defendant caused the streets to be graded by raising them to the height of somewhat more than 6% feet above the former grade. On May 31, 1905, the plaintiff commenced an action against the defendant to recover the damages claimed in this cause. The action was tried on February 26, 1909. The plaintiff was nonsuited. This action was designated in the files of court as No. 11,699. Judgment finally disposing of the cause was entered on January 26, 1911. This judgment dismissed it without prejudice. In the meantime, on April 28, 1909, the plaintiff had commenced another action to recover upon the same cause of action. This was designated as cause No. A-2026. The defendant interposed the defenses that cause 11,699 was still pending and undetermined, and that the cause of action alleged therein was barred by the limitations prescribed by sections 6447 and 6449 of the Bevised Codes. At the close of the evidence, the court on motion of defendant directed a verdict in its favor, and judgment was on March 14, 1910, entered accordingly. The present action was commenced on January 28, 1911. In its answer the defendant interposed three affirmative defenses: (1) That the cause of action was barred by the provisions of sections 6447 and 6449 of the Be-vised Codes; (2) that cause A-2026 was still pending and undetermined; and (3) that in another action theretofore tried in the district court of Silver Bow county, in which the parties plaintiff and defendant in this action and the cause of action alleged are identical, a judgment had been rendered and entered upon the merits, and that this judgment, never having been reversed, modified or set aside, is res judicata as to the right of plaintiff to recover in this action. The judgment relied on in this latter defense is the judgment rendered in cause A-2026 on March 14, 1910. In his reply the plaintiff does not deny that cause A-2026 is still pending or allege that the judgment therein has been satisfied, nor does he allege facts or circumstances showing that such is the case. He denies that it was rendered on the merits, and then alleges that the court directed [133]*133the verdict therein for the plaintiff, upon the ground and for the sole reason that the action having been commenced while cause No. 11,699 was still pending and undetermined, it was not commenced in pursuance of the provisions of section 6464, Revised Codes, and hence was barred by the statute of limitations. Counsel for defendant in their motion demanded judgment on several grounds, among others that the reply of plaintiff admitted that another action, viz., cause A-2026 was still pending. We think that the motion for judgment was properly-granted.
It was incumbent upon the plaintiff to put in issue the allegations of defendant’s. special defense, or to allege facts from which it would appear prima facie that the former action had been finally terminated. If it appears from the face of a complaint that another action is pending between the same parties [1] for the same cause, the pleading is open to objection by demurrer- (Rev. Codes, see. 6534). The objection may be taken in the words of the statute. (Sec. 6535.) When this fact does not appear, the objection may be taken by answer. (Sec. 6538.) In either case the pendency of the former action is a conclusive reason why the court shall not entertain the latter. The fact •that judgment has been entered in the former action is not conclusive that it has been finally determined. An action is commenced when the complaint is filed. (Sec. 6457.) “An action is deemed to be pending from the time of its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” (Sec. 7188.) Though a judgment is defined as the final determination of rights of the parties in an action or proceeding [2] (see. 6710), the action must be regarded as still pending, within the meaning of section 7188, supra, until the happening of one or more of the events enumerated therein. It was formerly the rule that it was not a good answer to a plea in abatement that the former suit had been dismissed when the latter was commenced (1 Ency. PI. & Pr. 755), but since pleas in abatement are not favored, the weight of authority now lends sup[134]*134port to the rule that the discontinuance or dismissal of the [3] former action may be alleged as a sufficient reply to the plea at any time prior to the trial, and thus an abatement prevented. (1 Ency. of PI. & Pr. 755; 1 Cyc. 25; Moore v. Hopkins, 83 Cal. 270, 17 Am. St. Rep. 248, 23 Pac. 318; Dyer v. Scalmanini, 69 Cal. 637, 11 Pac. 327; Evans v. Johnston, 115 Cal. 180, 46 Pac. 906.) The essential averment in the answer or plea is that another action for the same cause is still pending between the same parties. It would seem that if the demurrer may follow the language of section 6538, the answer need not be more explicit. But be this as it may, the sufficiency of the answer in this ease is not questioned. Therefore, in order to present [4] a triable issue it was necessary either that a denial be interposed by the reply, or that the facts as they actually existed be alleged. So far as the reply shows, cause A-2026 may still be pending on a motion for a new trial or on appeal. If so, it is still pending within the meaning of section 7188, supra.
(Submitted December 12, 1911.
Decided January 11, 1912.)
Judgment on Merits — Abatement—Pleas in Bar.
1. Where a plea in abatement, — that another action is pending between the parties for the same cause,- — -is joined with pleas in bar, 1. e., the statute of limitations and res judicata, — and the judgment recites that it was rendered on the merits, such judgment, if permitted to stand, is a bar to a subsequent action, even though the decision of the questions arising upon the pleas in bar was erroneous.
Judgments — Dismissal of Action — Statute of Limitations.
2. One who within one year after an aetion is dismissed without prejudice commences a new action, brings himself within the privilege accorded by section 6464, Revised Codes, which provides that if an action is originally commenced within the time limited therefor, and is terminated in a manner other than by a voluntary discontinuance, a dismissal of the complaint for neglect to proceed with the action, or by a final judgment upon the merits, a new one may be commenced within one year after such termination.
[134]*134We do not wish to be understood by anything said herein as holding that an acquiescence by the plaintiff in the judgment in the former action would not be sufficient to prevent abatement of the second action. His acquiescence must be made to appear, however, by appropriate allegation.
This conclusion renders it unnecessary to consider the other questions argued by counsel. The judgment is affirmed.
Affirmed.
Mr. Justice Smith and Mr. Justice Holloway concur.