Brown v. Brown

• Decision Date: 12 March 1913
• Citation: 86 A. 32,110 Me. 280
• Parties: BROWN v. BROWN.
• Court: Maine Supreme Court

86 A. 32

110 Me. 280

BROWN

v. BROWN.

Supreme Judicial Court of Maine.

March 12, 1913.

Report from Supreme Judicial Court, Androscoggin County, at Law.

Action by Ada F. Brown against David Brown. Reported on the libel, plea in abatement, answer thereto, and an agreed statement of facts. Case reported. Plea adjudged bad, and defendant required to plead over.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, BIRD, and HANSON, JJ.

Newell & Skelton, of Lewiston, for plaintiff. Gates, Pulsifer & Ludden, of Auburn, for defendant.

KING, J. May 18, 1912, the plaintiff began a libel for divorce against the defendant, which was inserted in a writ of attachment returnable to the September term, 1912, of the Supreme Judicial Court of Androscoggin county, Me., on which writ real estate was attached to the amount of $10,000, and the same was duly served on the defendant Thereafter, on August 17, 1912, the plaintiff caused said real estate attachment to be discharged of record in the registry of deeds, where the same was recorded, and then began another libel for divorce against the defendant, in all respects the same as the first libel, except the date, which was inserted in a writ of attachment returnable to the same term of court, and on which real estate was attached to the amount of $25,000, and the writ duly served on the defendant. The first action was not entered at said term of court, but the second action was, when and where Messrs. Oakes, Pulsifer & Ludden entered their appearance specially for the defendant and seasonably filed a plea in abatement, on the ground of the pendency of another action between the same parties for the same cause. To that plea the plaintiff replied, denying that another action was pending when the second suit was begun. September 25, 1912, after the first day of said term, which was the 17th day of September, 1912, the plaintiff caused a written notice, directed to the defendant, to be delivered to Messrs. Oakes, Pulsifer & Ludden, in which notice she stated that the first libel "was discontinued by a discharge of said proceedings prior to the service of the libel, dated August 17, 1912, and returnable to said court, which is now pending therein, and that said first libel is now and hereby discontinued." To that notice Messrs. Oakes, Pulsifer & Ludden replied to the plaintiff's attorney the same day, acknowledging receipt of the notice, but stating that: "We are not now and never have been attorneys of record of said David Brown respecting said suit. Neither are we attorneys in fact for said Brown respecting said suit. We therefore assume no obligation or responsibility in respect to said notice. In regard to a later suit, being a libel for divorce between the same parties issuing from your office on August 17, 1912, will say that we are not attorneys of record of said Brown, further than may be indicated by a special appearance made by us and the filing of a plea in abatement."

The case is reported to the law court upon the libel, plea in abatement, answer thereto, notice to counsel of the discontinuance of the former libel, the reply thereto, and an agreed statement of facts, which merely confirms the foregoing recitals.

The plea of the pendency of another action is a dilatory one, technical in its nature; and a person interposing it should clearly show itself within the reason for its enforcement. The principle on which the plea is allowed is that a person should be protected from being harassed and vexed by the pendency of two actions at the same time to recover the same demand. At common law and in the earlier practice of the courts the rule allowing this plea was applied with strictness, as shown in Commonwealth v. Churchill, 5 Mass. 174; Gamsby v. Ray, 52 N. H. 513.

But later decisions are more liberal; and, while the authorities are not now wholly in accord as to its application, we think it is the modern doctrine, supported by a great weight of judicial precedent, that the rule allowing this plea is not one of unbending rigor or of universal application, but rather one to be applied to promote justice and equity; and that it should not be allowed where justice to the defendant does not reasonably require it, and where to allow it would work manifest injustice to the plaintiff.

Hence that class of cases which hold that the mere fact that another suit was pending when the second suit was begun does not, of itself, show that the second suit is necessarily vexatious, and that an inquiry may be had as to whether it is in fact so, and whether the second suit was not necessary in order to protect and secure the plaintiff's full rights. The following cases are of that class: Quinebaug Bank v. Tarbox, 20 Conn. 510; Downer v. Garland, 21 Vt. 362; Blackwood v. Brown, 34 Mich. 4; State v. Dougherty, 45 Mo. 294; Griffin v. Levee Commissioners, 71 Miss. 767, 15 South. 107; Norfolk & Western Railroad v. Nunnally, 88 Va. 546, 14 S. E. 367; Rogers v. Hoskins, 15 Ga. 270; Gilmore v. Georgia Railroad & Banking Co., 93 Ga. 482, 21 S. E. 50; National Express & Transportation Co. v. Burdette, 7 App. Cas. (D. C.) 551; Phillips v. Quick, 68 Ill. 324; Byne v. Byne, 1 Rich. (S. C.) 438; Langham v. Thomason, 5 Tex. 127.

And, as showing still more clearly a purpose to be liberal in favor of plaintiffs who have brought a second suit during the pendency of the first,...