Bank of America National Trust & Savings Ass'n v. Cohen

CRAIL, P. J.

—This is an action to recover upon the agreement of the defendants to pay the purchase price of certain real property, and a default thereon. Prior to the filing of this action the plaintiff had filed an action against the same defendants upon the same identical transaction. The complaints in both actions are word for word the same, and the relief demanded is word for word the same, with the exception that in the former action plaintiff styled itself “Bank of America”, and in this action it styled itself “Bank of America .. . as trustee of trust No. BI-114”, and alleged that it held the property in question as trustee under a certain declaration of trust between itself and certain undisclosed principals.

The defendants who are the appellants, contend that, ‘ ‘ The plaintiff in the former action is the same as the plaintiff in this action,” and so for the purposes of this decision we will assume that the complaints are identical in all respects except the filing stamps on their backs. In the present action the defendants filed, first, their answer to the merits, and second, their plea in abatemeñt. When the ease came on for trial the court took up first the plea in abatement.

At this stage of the proceedings the plaintiff offered to dismiss the prior action, but it could not be dismissed by the plaintiff under subdivision 1 of section 581 of the Code of Civil Procedure against the defendants’ objections for the reason that the defendants had set up a counterclaim. The court suggested a stipulation for consolidation of the two cases, but defendants refused to stipulate. Thereupon the court started to consolidate the two actions on its own motion, suggesting a short continuance, but there was objection and the plan was abandoned. After hearing the evidence on the plea in abatement the court denied the plea. Whereupon counsel for defendants said, “I take it that Tour Honor now

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wishes to go ahead with the trial of the [present] ease.” And he further said,1 ‘ Counsel will be present but will not take any further active part in the trial of this action.” The court proceeded with the trial of the ease on the merits and rendered judgment for the plaintiff. It is from this judgment the defendants appeal. They contend that the judgment should be reversed for the reason that the court should have sustained the defendants’ defense of prior action pending.