Smock v. Graham

1 Blackf. 314, 1824 Ind. LEXIS 18

• Court: Indiana Supreme Court
• Decided: November 12, 1824
• Status: Published

Opinion

Holman, J.

Assumpsit on a promissory note. Pleas, nonassumpsit and no consideration. On the trial, the defendant introduced a record to show the pendency of another action for the same cause. The record introduced, contains the proceedings in an action in the Marion Circuit Court, by the same plaintiff against the same defendant, on a note similar to this; and shows the rendition of final judgment in the Circuit Court in fa-* vour of the plaintiff, and that said judgment was wholly reversed and set aside in this Court. This record was admitted by the Court to he read to the jury. And the Court instructed the jury, that if they believed there was another suit pending in that Court, founded upon the same note and cause of action, the plaintiff could not recover; that if the cause of action and note? set forth in said record, was the same as that upon which this action is founded, there was another suit pending for the same cause of action, and the plaintiff could not recover; and that the said record furnished good evidence of the pendency of another action, the record of reversal notwithstanding.

Sweetser, for the appellant. Jfelson, for the appellee.

To this evidence and instruction, the plaintiff filed a bill of exceptions. The defendant obtained a verdict and judgment.

This evidence was inadmissible, and these instructions were incorrect. The pendency of another action for the same cause, is, in general, only the subject-matter of a plea in abatement; 1 Chitt. Pl. 443, and the authorities there cited; and can never he given in evidence under the general issue. Nor does this record show the pendency of another action. It presents the history of an action that was finally determined in the Circuit Court, and wholly reversed and set aside in this Court. So that it was no longer pending, but finally and conclusively determined

(1).

Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c„.

The pendency of a subsequent suit cannot be pleaded in abatement. Renner v. Marshall, 1 Wheat. 217. Nor can the pendency of agrior suit in a foreign.Court, or in the Court of another state, be so pleaded, Bowne v. Seymour, 9 Johns. R. 221. — Walsh v. Durkin, 12 ib. 99.