Needham v. Wright
| Decision Date | 17 January 1895 |
| Docket Number | 15,419 |
| Citation | 39 N.E. 510,140 Ind. 190 |
| Parties | Needham et al. v. Wright et al |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
The judgment is reversed, with instructions to sustain the demurrers to the several pleas in abatement.
S Claypool, W. A. Ketcham, C. Martindale and S. M. Shepard, for appellants.
J. M Butler, Sr., J. M. Butler, Jr., and A. H. Snow, for appellees.
The facts and events leading up to the bringing of this action are substantially the same as those upon which was founded the case of Rand, Rec., v Wright, 141 Ind. 226, 39 N.E. 447.
As appears from that case, certain persons constituting the Indiana Banking Company, entered into written articles of agreement, forming a copartnership under the name and style of the Indiana Banking Company, for the purpose of carrying on the business of banking in the city of Indianapolis for the period of five years from the first day of March, 1875, with a proviso that the life of the partnership might, at the end of that time, be extended; that by other articles of agreement the partnership was so extended for two years from the first day of March, 1880; that one of the partners died in March, 1881, and, in accordance with the terms of the articles of agreement, the widow of the deceased partner took his place in the firm; that another of the partners retired in February, 1882, at which time the remaining partners, together with the widow of the deceased partner, entered into a new copartnership, which latter continued from March 1, 1882, until August, 1883, when the company became insolvent, and, in a suit brought by one of the partners to wind up the business, a receiver was appointed.
It also appears from the case of Rand, Rec., v. Wright, supra, that in February, 1878, during the period of original partnership, purchase was made from appellees by the banking company of certain capital stock of the First National Bank of Indianapolis, No. 55; in which transaction, it is alleged in the complaints in both cases, a fraud was practiced by appellees upon said company, which alleged fraud is the foundation of the cause of action in this case, as it was in the other.
The action in the case at bar was brought by appellants as surviving partners of the original copartnership, established in 1875; the cause of action, if any, having accrued during the term of that partnership, and in its favor.
To the complaint alleging the facts upon which the claim is based, the appellees filed four pleas in abatement; to the first, third and fourth of which pleas, demurrers for want of facts were overruled; and to the second of which a demurrer for want of facts was sustained. The overruling of the demurrers to the first, third and fourth pleas in abatement is assigned as error.
Afterwards issues were joined on the first, third and fourth pleas in abatement, and the cause was submitted to the court for trial. There was a special finding and conclusions of law on which judgment was entered abating the action.
Errors are assigned on the conclusions of law, and also on the overruling of a motion for a venire de novo, and a motion for a new trial.
The second conclusion of law was: "That from the first day of March, 1875, to the first day of March, 1882, the firm conducting the business under the style of the 'Indiana Banking Company,' was, in fact, the same firm, and a practical continuation of the identical partnership."
To this conclusion the appellees excepted, and they have assigned cross-error thereon.
As we view the case, however, we are of opinion that it may best be determined on a consideration of the ruling of the court in sustaining the first, second, and third pleas in abatement.
While a plea in bar is a denial of the existence of the alleged cause of action itself, a plea in abatement is merely a denial of the right to bring the present suit. The plea in abatement amounts therefore to a tacit admission of the cause of action; it is a dilatory plea.
In 1 Chitty Pl. 462 (16th Am. ed), it is said: "The criterion or leading distinction between a plea in abatement and a plea in bar is, that the former must not only point out the plaintiff's error, but must show him how it may be corrected, and furnish him with materials for avoiding the same mistake in another suit in regard to the same cause of action; or, in technical language, must give the plaintiff a better writ."
It is further said in the same authority, p. 473, that:
In Stephen Pl. 352 (9th Am. ed.), it is said that dilatory pleas "are regarded unfavorably by the courts, as having the effect of excluding the truth;" and therefore that they "must be certain in every particular; which seems to amount to this, that they must meet and remove by anticipation every possible answer of the adversary." And at p. 431, it is said in the same work: "The plea must, at the same time, correct the mistake, so as to enable the plaintiff to avoid the same objection in framing his new writ or declaration."
In Gould Pl., sections 52, 57, 58, 59, in speaking of the certainty required in pleas in abatement and other dilatory pleas, the rule is stated even more strongly:
The rule as thus given by the text writers is followed in this State. Board, etc., v. Lafayette, etc., R. R. Co., 50 Ind. 85 (117); Kelley v. State, 53 Ind. 311 (312). See, also, 1 Am. and Eng. Encyc. of Law 11, and notes.
The first plea in abatement, in the case under consideration, is that another suit based on the same cause of action was pending in the Marion Superior Court at the time of bringing this suit.
To constitute a good answer of another cause pending, it must appear that the suit pending is for the same identical cause of action as that in which the answer is interposed, and that it is between the same parties or their privies. Kelsey v. Ward, 16 Abb. Pr. 98; 32 How. Pr. 618; Haire v. Baker, 5 N.Y. 357; Goddard v. Benson, 15 Abb. Pr. 191; Bourland v. Nixon, 27 Ark. 315; 1 Chitty Pl., notes, 470. See, also, Loyd v. Reynolds, 29 Ind. 299; Dawson v. Vaughan, 42 Ind. 395; Bryan v. Scholl, 109 Ind. 367, 10 N.E. 107.
The other suit which this plea alleges was pending when this suit was brought, is that of Rand, Rec., v. Wright, supra.
In that suit, it will be remembered, the receiver was appointed for the last Indiana Banking Company, organized in pursuance of the articles of agreement made in February, 1882.
The plaintiffs in the suit at bar are the surviving partners of the First Indiana Banking Company, organized in pursuance of the articles of agreement made in 1875. The first plea in abatement does not show by direct averment that the cause of action in this suit, and which accrued in 1878, during the first partnership, and in favor of that partnership, ever passed to the company organized in February, 1882, and in which the receiver was appointed. That at least a second partnership, if no more, was formed appears from the plea itself.
The death of Morrison, one of the original partners, in ...
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