Walker v. Vandiver

• Decision Date: 28 December 1915
• Citation: 181 S.W. 310,133 Tenn. 423
• Parties: WALKER v. VANDIVER.
• Court: Tennessee Supreme Court

181 S.W. 310

133 Tenn. 423

WALKER v. VANDIVER.

Supreme Court of Tennessee.

December 28, 1915

Certiorari to court of Civil Appeals.

Action by Beulah Vandiver against G. W. Walker. A judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings certiorari. Affirmed.

Frank L. Lynch and Floyd Estill, both of Winchester, for plaintiff in error.

J. M Littleton and Felix Lynch, both of Chattanooga, and H. M Templeton, of Winchester, for defendant in error.

BUCHANAN J.

Miss Vandiver recovered a judgment against Walker based on the verdict of a jury for the sum of $1,500 as damages for breach of a contract to marry, and the Court of Civil Appeals affirmed the judgment. Walker has brought the record here on petition for certiorari, and makes a single assignment of error, which is that the Court of Civil Appeals erred in holding that the replication to the plea in abatement was sufficient.

The plea in abatement was based on the pendency of two former suits for the same cause of action by plaintiff against defendant. The plea averred that one of said suits was pending in the circuit court of Franklin county at the time of the institution of the present suit, and the same averment was made in respect of the pendency of another suit in the circuit court of Bledsoe county; wherefore judgment was prayed of the summons and declaration in the present suit that they be quashed. To the foregoing plea in abatement plaintiff replied that when the summons in the former Franklin county action was sued out defendant had absconded concealing himself so that service could not be had upon him and that service of said summons was never made upon defendant, wherefore that action had been abandoned by plaintiff before the present suit was instituted.

The summons in the former Franklin county suit was issued on April 5, 1913, and the summons in the present suit was issued on November 28, 1913, and was executed by service upon defendant the same day it was issued. It does not appear that alias process was issued from term to term in the action which was begun by issuance of the summons on April 5, 1913. See section 4445, Shan. Code. There was no issuance of alias process returnable to the August term of the circuit court for the year 1913. We are therefore of the opinion that the former Franklin county suit had been abandoned and discontinued, and was not pending at the date of the institution of the present Franklin county action.

In addition to the above reply to the plea in abatement as to the former Franklin county suit it appears that said suit was formally dismissed by proper order in the circuit court of Franklin county made at its August term, 1914, and this dismissal was prior in date to the filing of the replication of the plaintiff to the plea in abatement, but after the plea was filed.

The reply made by plaintiff to the plea in abatement in respect of the Bledsoe county former suit was that at the time of the suing out of process in said action the defendant, who was a citizen of Franklin county, was in hiding in Bledsoe county, concealing himself there for the purpose of avoiding process. Nevertheless process was served upon him in said former Bledsoe county suit, and thereafter defendant returned to his home in Franklin county, whereupon plaintiff abandoned her suit in Bledsoe county, and instituted the present suit in Franklin county, and since the filing of the plea in abatement in the present cause on December 16, 1913, plaintiff has formally dismissed the Bledsoe county suit by proper order entered of record therein in the circuit court of Bledsoe county.

Undoubtedly the Bledsoe county suit was a former suit pending at the date of the institution of the present suit.

It is insisted for defendant that according to the common-law rule plaintiff could not, after a plea in abatement of the pendency of a former suit, avoid the effect of the plea by setting up in reply a discontinuance or dismissal of the former suit. On this subject, in 1 Corpus Juris, p. 94, § 132, it is said:

"The rule at common law was to sustain the plea if it was true at the time it was filed. Accordingly, at common law, plaintiff could not, after a plea in abatement of the pendency of a prior suit, avoid the effect of the plea by discontinuing the prior action"--citing Chitty Pl.

(16th Am. Ed.) 470 ; Knight's Case, 2 Ld. Raym. 1014, 92 Reprint, 175, 1 Salk. 329, 91 Reprint, 290. And see Wright v. Keifer, 131 Ill.App. 298. "And this rule has been followed in some of the states"--citing Nashville, etc., R. Co. v. Hubble, 140 Ga. 368, 78 S.E. 919; Singer v. Scott, 44 Ga. 659 (under Georgia Code); Frogg v. Long, 3 Dana (Ky.) 157, 28 Am. Dec. 69; Com. v. Churchill, 5 Mass. 174; Le Clerc v. Wood, 2 Pin. (Wis.) 37. And see Curtis v. Piedmont Lumber, etc., Co., 109 N.C. 401, 405, 13 S.E. 944. Compare, however, Rogers v. Hoskins, 15 Ga. 270. "In nearly all jurisdictions, however, the modern doctrine is that it is a good reply to a plea of the pendency of a prior action for the same cause that the former suit has been dismissed or discontinued, whether before or after the filing of the plea"--citing United States: Chamberlain v. Eckert, Fed. Cas. No. 2,576, 2 Biss. 124; Fowler v. Byrd, Fed. Cas. No. 4,999a, Hempst. 213. But see Demond v. Crary (C. C.) 1 Fed. 480. Arkansas: Grider v. Apperson, 32 Ark. 332. California: Dyer v. Scalmanani, 69 Cal. 637, 11 P. 327. District of Columbia; National Express, etc., Co. v. Burdette, 7 App. D. C. 551. Illinois: Gage v. Chicago, 216 Ill. 107, 74 N.E. 726; Wright v. Keifer, 131 Ill.App. 298; Jerseyville Shoe Mfg. Co. v. Bell, 125 Ill.App. 496. Iowa: Moorman v. Gibbs, 75 Iowa, 537, 39 N.W. 832. Kentucky: George Bohon Co. v. Moren, 151 Ky. 811, 152 S.W. 944; Citizens' Nat. Bank v. Froman, 111 Ky. 206, 63 S.W. 454, 757, 23 Ky. Law Rep. 613, 56 L. R. A. 673, Wilson v. Milliken, 103 Ky. 165, 44 S.W. 660, 42 L. R. A. 449, 82 Am. St. Rep. 578. Contra, Draughn v. Wolf, 11 Ky. Law Rep. 366; Gist v. Shean, 8 Ky. Law Rep. 509. Massachusetts: Manufacturers' Bottle Co. v. Taylor-Stites Glass Co., 208 Mass. 593, 95 N.E. 103. Minnesota: Nichols v. State Bank, 45 Minn. 102, 47 N.W. 462; Page v. Mitchell, 37 Minn. 368, 34 N.W. 896. Missouri: Carson-Rand Co. v. Stern, 129 Mo. 381, 31 S.W. 772, 32 L. R. A. 420; Warder v. Henry, 117 Mo. 530, 23 S.W. 776; State v. Hines, 148 Mo.App. 298, 128 S.W. 250. Montana: Peterson v. Butte, 44 Mont. 129, 120 P. 231, 233, citing Cyc. New York: Porter v. Kingsbury, 77 N.Y. 164; Averill v. Patterson, 10 N.Y. 500; Lord v. Ostrander, 43 Barb. 337; O'Beirne v. Lloyd, 31 N.Y. Super. Ct. 19, 6 Abb. Prac. (N. S.) 387, reversed on other grounds 43 N.Y. 248; Trow Printing, etc., Co. v. New York Book Binding Co., 3 N.Y. Supp. 59; Beals v. Cameron, 3 How. Prac. 414; Smith v. White, 7 Hill, 520; Marston v. Lawrance, 1 Johns. Cas. 397. Oregon: Farris v. Hayes, 9 Or. 81. Pennsylvania: Gardner v. Kiehl, 182 Pa. 194, 37 A. 829; Findlay v. Keim, 62 Pa. 112; Toland v. Tichenor, 3 Rawle, 320. Rhode Island: Banigan v. Woonsocket Rubber Co., 22 R.I. 93, 46 A. 183. Texas: Trawick v. Martin Brown Co., 74 Tex. 522, 12 S.W. 216; Payne v. Benham, 16 Tex. 364; Langham v. Thomason, 5 Tex. 127; International, etc., R. Co. v. Barton, 24 Tex.Civ.App. 122, 57 S.W. 292; Texas, etc., R. Co. v. Kenna (Tex. Civ. App.) 52 S.W. 555. Virginia: Norfolk, etc., R. Co. v. Nunnally, 88 Va. 546, 14 S.E. 367. Washington: Wright v. Suydam, 72 Wash. 587, 603, 131 P. 239, quoting Cyc.

In 1 Cyc. p. 25, the present rule is stated as follows:

"The tendency of the later cases and a preponderance of authority sustain the doctrine that it is a good answer to a plea of the pendency of a prior action for the same cause that the former suit has been discontinued, whether the discontinuance be before or after the filing of the plea. Under this doctrine the plea will be overruled unless the prior suit is pending at the time of the trial of the second."

To sustain the above text a large array of authorities is cited.

It is insisted for defendant that this question is open in Tennessee. The point is, however, hardly maintainable under our authorities. It is laid down in Caruthers' History of a Lawsuit (4th Ed.) 169, that:

"If the plea in abatement is the pendency of another suit for the same cause of action, the former suit may be dismissed, and that fact being replied, the abatement is obviated."

Turner v. Lumbrick, 19 Tenn. (Meigs) 7-13, was an action of forcible entry and detainer, to which the defendant pleaded a...