State ex rel. Rice v. Large
| Citation | 145 So. 346,164 Miss. 318 |
| Decision Date | 09 January 1933 |
| Docket Number | 30337 |
| Court | United States State Supreme Court of Mississippi |
| Parties | STATE ex rel. RICE, ATTY.-GEN., v. LARGE |
1. ABATEMENT AND REVIVAL.
Proper test in determining whether subsequent action should be abated because of pendency of prior action is whether judgment in prior action would be res judicata of issues presented in second suit.
2. ABATEMENT AND REVIVAL.
Pendency of private suit to try right to office held not ground for abatement of state's action to remove party from office since state was not party to prior suit, and was not bound thereby.
APPEAL from circuit court of Wayne county, HON. J. D. FATHEREE Judge.
Action in the nature of quo warranto by the State, on the relation of Greek Rice, Attorney-General, against U.S. Large. From a judgment dismissing the action the State appeals. Reversed and remanded.
Reversed and remanded.
Greek Rice, Attorney-General, L. K. Saul, of Ellisville, and Welch & Cooper, of Laurel, for appellant.
It is a well settled general principle of the law that the pendency of a prior action or suit for the same cause, between the same parties, in a court of competent jurisdiction, will abate a later action or suit either in the same court or in another court of the same jurisdiction.
1 Corpus Juris, sec. 38, p. 45.
It may be stated as a general proposition of law that it is a sufficient ground for abating a suit that another suit is pending in the same jurisdiction for the same cause of action and between the same parties.
The remedy by information in the nature of quo warranto shall lie, in the name of the state, against any person or corporation offending in the following cases, viz:
Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or any office in any corporation, city, town or village, and to try the right to any such office.
The right of Large to oust Wilkins is distinct from the right of the State to oust Large.
Andrews v. State, 60 Miss. 740, 13 So. 853.
The two actions are not the same. One is the suit of a private party, instituted by himself and subject to his control; the other is the petition of the attorney-general in a matter affecting the public interest.
The judgment in the case brought by Large against Wilkins will not settle as against the State of Mississippi Large's right to hold the office of county superintendent of education. And therefore will not be res adjudicata. Harrison County v. Robertson, 83 So. 617.
The true test is whether or not the judgment in one case could be pleaded as res adjudicata of the proceeding in the second case. 1 C. J. 66.
Reily & Parker, of Meridian, for appellee.
The record in this case reveals that not only is the same legal question involved in both cases, but they are identical as to the question of facts to be decided.
Two suits should not be entertained at the same time in the same court between the same parties and involving the same demand.
Harrison County v. Robertson, 83 So. 617.
The various statutes of this state frequently confer power upon several different officers to bring the suit, and in such case the one first bringing the suit has the right to prosecute such suit, and, if the second party should bring suit while the first is pending, the pendency of the first suit could be pleaded in answer to such second suit.
Robertson v. Monroe County, 79 So. 187.
To sustain the plea of another action pending at law or in equity or to sustain such defense by demurrer or answer under the codes, it is essential that it shall appear, not only that there is a prior action pending between substantially the same parties, but also that the cause of action and the issues involved are substantially the same in the two suits.
True, the defendants are not all the same, either in name or in fact, but it is not necessary to sustain the plea that they be the same. It is enough that some of them be the same, if the actions are based upon substantially the same facts. In each case there was a defendant who stood for the general public, and the decision in either would be binding on the public as res adjudicata.
Quinn v. Monona County, 117 N.W. 1100.
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. As the parties to the cases are the same, the issues are identical and the fact such that the interest of the respective parties must be determined. We think that the rule that another action is pending is a good plea in abatement, although the parties plaintiff are not the same in the two suits.
Quinn v. Elliott, 98 N.W. 625.
Would the adjudication of one of the cases support a plea of res adjudicata in the subsequent suit. (2) Whether or not full and adequate relief was obtainable in the first action. (3) Will the same evidence support the actions.
See 1 C. J., p. 66.
This is an action in the nature of a quo warranto, issued in the name of the state of Mississippi by the Attorney-General, whereby it is sought to have the appellee, U.S. Large, removed from the office of county superintendent of education of Wayne county, Mississippi. To the information filed on behalf of the state, the appellee filed a plea in abatement, alleging, in effect, that all the matters involved were also involved and being litigated in a prior suit then pending in the same court. The demurrer to this plea in abatement was overruled, and, the state having declined to plead further, judgment was entered abating and dismissing the suit; and from this judgment the state has appealed.
The information charged that the appellee was unlawfully holding and exercising the functions of the office of superintendent of education of Wayne county, because he is not now, and was not at the time of his election to such office, qualified and eligible to hold it; and alleges as grounds of such disqualification that: First, he had not been a resident...
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