Wilcox v. Wilmington City Railway Co.

40 A. 191, 17 Del. 245, 1 Penne. 245, 1898 Del. LEXIS 13

• Court: Superior Court of Delaware
• Decided: February 25, 1898
• Status: Published

Opinion

Fore, C. J:—

You may elect which case you will try. You may elect to stand on one case and let the other go. In a case in which I was counsel on one side and Mr. Nields on the other, after an argument lasting a half day the Court permitted me to elect which case I would try.

Mr. Saulsbury:—I do not ask that he shall be made to elect.

Mr. Knowles:—If my learned friend does not agree to let the case of Fewis Wilcox against the Wilmington City Railway Company go over and rest upon the case of Fewis Wilcox, Administrator of Johanna G. Wilcox, then I will ask that the former case be discontinued.

Mr. Saulsbury :—I ask that the witnesses be called and that a rule be laid on the counsel to pay the costs before he is allowed to prosecute the other action.

Tbat is the rule where the suit has been brought and you attempt to bring another suit, being between the same parties and in relation to the same subject matter. These by the record are two distinct suits and are already brought. They are in a different right absolutely; one as administrator and the other personally.

The effect of a discontinuance is a judgment against the plaintiff for costs.

Mr. Saulsbiiry;—I Want them paid.

Lore, C. J:—

After discontinuing this suit he could not bring another suit between the same parties without paying costs in the first case. That is the extent of our ruling. But here are two suits running at the same time, plead to issue, ready for trial. I have never known the rule to go to the extent you claim.

We cannot make the rule you request.