McCormick v. Gross
Before: Cooper
Synopsis
Pleading—Abatement—Another Action Pending—Bes Ad judicata. —In order to sustain a plea in abatement of another action pending for the same cause of action, the identity of the matter involved must be such that a judgment in the prior action could be pleaded in bar as a former adjudication.
Id.—Bepleyin—Gist op Action—Action Pending por Purchase Price—Distinct Cause op Action—Judgment por Dependant not A Bar.—In an action of replevin, the gist of the action is the right of the plaintiff to the immediate and exclusive possession of the specific property sued for, at the time of the commencement of the action. A prior action pending, by the same plaintiff against the same defendant, to recover money due under a contract for the price of the same property, is upon a distinct cause of action, and a plea thereof in abatement of the replevin suit which shows that judgment was rendered in the former suit for the defendant does not show a judgment which could be pleaded in bar in the replevin suit, and is not tenable as such plea.
COOPER, C.
Appeal from judgment and order denying plaintiff’s motion for a new trial.
The complaint was filed November 11,1898, and alleges that, on the first day of September, 1896, the plaintiff was, ever since has been, and still is, the owner and entitled to the possession of the personal property, therein described, of the value of $1,625; that defendant is in possession thereof, and refuses to deliver possession to plaintiff after demand made.
Judgment is prayed for the recovery of the possession of the property, or its value in case a delivery cannot be had. The defendant denied the allegations of the complaint, and pleaded, in abatement, the pendency of another action. The facts pleaded and relied upon in support of defendant’s plea of “action pending” are as follows: On July 14, 1898, this plaintiff commenced an action against this defendant to recover the sum of one thousand dollars, alleged to be due and owing to plaintiff upon an express contract, as the purchase price of the personal property described in the complaint in this case, which, it was alleged, had been sold and delivered by plaintiff to defendant, at his special instance and request. The defendant answered said complaint, denying the indebtedness. Upon trial, judgment was duly given and made, October 13, 1898, in favor of defendant and against plaintiff. Plaintiff made a motion for a new trial, which was denied February 13, 1899, and on the tenth day of April, 1899, he duly gave notice of appeal to this court from said judgment and order denying his motion for a new trial. The present action was tried May 11, 1899, and at the time of the trial the appeal from the judgment and order in the former action was still pending. (The judgment and order have since been affirmed here. 60 Pac. Rep. 858.) The above facts appearing at the trial, the
[304]
court ordered that “this action do abate,” and that defendant recover his costs, and judgment was so entered. The sole question here is as to whether or not the above facts show that a prior action was pending, concerning the same subject-matter, at the time of the trial of this. We do not think the identity of the subject-matter of the two suits was such that the plea of defendant was available. The present action is for the recovery of the possession of specific personal property. The gist of the action is the right of the plaintiff to the immediate and exclusive possession of the property at the time the action was commenced.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)