Guinn v. Elliott

• Decision Date: 18 February 1904
• Citation: 98 N.W. 625,123 Iowa 179
• Parties: ANDREW GUINN, Appellant, v. ALMIRA ELLIOTT et al., Appellees. ALMIRA ELLIOTT, Appellee, v. ANDREW GUINN et al., Appellants
• Court: Iowa Supreme Court

98 N.W. 625

123 Iowa 179

ANDREW GUINN, Appellant, v. ALMIRA ELLIOTT et al., Appellees.

ALMIRA ELLIOTT, Appellee, v. ANDREW GUINN et al., Appellants

Supreme Court of Iowa, Des Moines

February 18, 1904

Appeal from Appanoose District Court.--HON. C. W. VERMILLION, Judge.

THESE are each actions to partition the same tract of land. A petition was first filed in the case of Guinn v. Elliott et al., and a notice by publication as to the nonresident defendants was first completed in that case. A petition was filed in the case of Elliott v. Guinn, and an original notice of that action was first placed in the hands of the sheriff and first served. In the case first above entitled, Almira Elliott filed a plea in abatement, based upon the pendency of her suit against the plaintiff. This case was first tried resulting in a decree abating the action. Thereafter, and on the same day, and on the same evidence, the court tried the second case, resulting in a decree for the partition of the lands as prayed. Plaintiff in the first suit--Andrew Guinn--who was a defendant in the second, appeals.--Reversed.

REVERSED AND REMANDED.

C. F Howell and W. R. C. Kendrick for appellant.

Frank S. Payne for appellee.

OPINION

DEEMER, C. J.

The two suits are for the partition of the same property. There is no question but that Andrew Guinn owned an undivided nine-fourteenths; Almira Elliott, two-sevenths; and John Helm, a nonresident, one-fourteenth. Their respective shares and interests were established and confirmed by the decree entered in the second case above entitled. In each case there was a plea in abatement on the ground of another suit pending, but the plea was sustained in the first case, and denied or dismissed in the other. The real parties in interest are the same in the two cases. Plaintiff in the first suit made some parties defendant who were not named in the second, but these parties were merely nominal, and his petition shows that they had no interest in the land. Plaintiff in the second suit made the real parties in interest defendants to her action. The decree fixing the interests of the respective parties is not complained of, save in one particular, which we shall hereafter notice. As the parties in the cases are the same, the issues identical, and the suits such that the interests of the respective parties must be determined, we think the rule that another action pending is a good plea in abatement obtains, although the parties plaintiff are not the same in the two suits. The cases came within the exception noted in Pratt v. Howard, 109 Iowa 504, 80 N.W. 546. It is manifest that these two suits could not proceed at the same time, and that a finding in one would be a complete bar to a decree in the other. The same evidence would support a decree in either case, and whatever was done in one would constitute a bar in the other.

On the face of it, the only question involved is one of costs. The first action was dismissed at plaintiff's costs amounting to something like $ 25. He or his attorneys also lost an attorney's fee which a court is authorized to tax in such cases. If this were all, we should not feel like interfering. But it appears in the record that Guinn first...