Fitch v. Whaples
Decision Date | 31 May 1966 |
Citation | 220 A.2d 170 |
Parties | James J. FITCH, Jr. v. Charles WHAPLES. |
Court | Maine Supreme Court |
James Blenn Perkins, Jr., Boothbay Harbor, for plaintiff.
William P. Hassan, Boothbay Harbor, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN, and DUFRESNE, JJ.
On November 10, 1964, the plaintiff brought the instant action for breach of contract in which real estate in the name of the defendant was attached. Defendant asserts as one of his defenses the following: In pretrial order, it was agreed that the plaintiff would present as an exhibit in this case, without objection from the defendant, the complaint and answer in the Connecticut proceedings and that since the parties were admittedly the same, the plaintiff's position was that defendant's allegations in Connecticut constitute admissions in Maine. The docket discloses that upon hearing, the presiding Justice below issued the following decree: From this ruling, the plaintiff has appealed.
The issue raised in this Court is whether the pendency of a prior suit for the same cause of action between the same parties in the State of Connecticut barred the plaintiff's subsequent prosecution of the instant action in Maine.
Dismissal of the action, even without prejudice, is an abatement thereof for the time being. It substitutes for the common law plea in abatement. It not only postpones the action as a stay thereof might have done, but it discontinues the complaint completely so that an entirely new suit must be instituted to bring the cause before the court again. Furthermore, for purposes of comparison, a stay keeps an attachment alive, while an abatement or dismissal destroys the same.
Brown v. Brown, 110 Me. 280, 282, 86 A. 32, 33.
If a liberal attitude against the abatement of a second suit is to be the rule where the duplicate suit is brought in the same jurisdiction as in Brown, supra, a similar latitude should obtain where the pending suit is in a different state, at least until such time as the vexatiousness of the second suit is made to appear. Even if our Court will not countenance vexation and oppression, it should not on the other hand set up automatic road blocks against the use, in a fair manner, of any avenue of redress opened to a litigant.
By the great weight of authority, the pendency of an action in personam, or transitory action, in one state is not sufficient cause, as a general rule, for the abatement of an action subsequently commenced in another state between the same parties for the same cause, even though complete jurisdiction has been acquired by the court in which the first action is pending. Chicago, R. I. & P. R. Co. v. Schendel, (1926) 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265; Kline et al. v. Burke Const. Co., (1922) 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077; Hatch v. Spofford, 22 Conn. 485, 58 Am.Dec. 433; Simmons v. Superior Court in and for Los Angeles County, (1950) 96 Cal.App.2d 119, 214 P.2d 844, 19 A.L.R.2d 288; Beneke v. Tucker, (1918) 90 Or. 230, 176 P. 183; Schmidt v. Posner, 130 Iowa 347, 106 N.W. 760; Greenberg v. Greenberg et al., 11 N.J.Super. 582, 78 A.2d 723; Miller v. Kearnes, 1935, 45 Ariz. 548, 46 P.2d 638; Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N.W. 938; Hill v. Hill, 51 S.C. 134, 28 S.E. 309; Mills v. Howard, 228 S.W.2d 906 (Tex.Civ.App.); 1 Am.Jur.2d, Abatement, Survival and Revival, § 10; 1 C.J.S. Abatement and Revival § 65.
It is true that a court has the right, and under certain circumstances the duty, to stay a proceeding until an action between the same parties for the same cause pending in another state is completed and that the grant or denial of such postponement lies within the sound judicial discretion of the trial court. Tinney v. Tinney, 211 Cal.App.2d 548, 27 Cal.Rptr. 239; Simmons v. Superior Court in and for Los Angeles County, supra; Beneke v. Tucker, 90 Or. 230, 176 P. 183 (1918); Hill v. Hill, 51 S.C. 134, 28 S.E. 309; Mills v. Howard, 228 S.W.2d 906 (Tex.Civ.App.1950); Farmland Irr. Co. v. Dopplmaier, 48 Cal.2d 208, 308 P.2d 732, 66 A.L.R.2d 590, (1957); 20 Am.Jur.2d Courts, § 137; Anno. 19 A.L.R.2d 301; 1 C.J.S. Actions § 133(6); 21 C.J.S. Courts § 548.
General Foods Corporation v. Cryo-Maid, Inc. (Del.), 198 A.2d 681, at page 683 (1964): 1 Am.Jur.2d, Actions, §§ 92, 94, 95; 1 C.J.S. Actions § 133c(1); Anno. 19 A.L.R.2d 317, 323, § 8; Restatement, Conflict of Laws, § 619, comment a.
A stay of proceedings, which in and of itself is less likely to result in prejudice than the abatement of the action, is not a matter of right to the parties, but rests within the sound discretion of the trial court. Multiple considerations may serve the trial court in a judicial exercise of its discretion in granting or denying a stay, such as whether the subsequent action was designed solely to harass the adverse party; the nature of the respective actions, especially with a view as to which appears to provide complete justice; also, where did the cause of action arise and which law will be applicable; will there be great and unnecessary expense and inconvenience; the availability of witnesses; the stage at which the proceedings in the other court have already progressed; the delay in obtaining trial. Each case must perforce present its own variety of circumstances which may necessitate different results.
Many circumstances which will induce a court of one state to stay its proceedings to await the prosecution of a pending action in another state between the same parties for the same cause, might be advanced to obtain an abatement of the...
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