Thompson v. Lyon (1859) · DecisionDepot

Thompson v. Lyon

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1859Published

Before: Baldwin

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Holding. The court held that a plea in abatement based on the pendency of a prior suit fails when the causes of action are not identical and the defendant fails to prove the averments made in the plea.

Issues

Whether the trial court's failure to make a finding on a plea in abatement constitutes reversible error when the facts are undisputed.
Whether a plea in abatement is sustained when the causes of action in two suits are not identical.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The plea in abatement is general, averring, that at the time of bringing the present suit, another suit was pending for the identical cause of action. This is not true.”

Synopsis

Ah Appellant cannot complain of error, when the record shows it was not to his prejudice.

Where, on plea in abatement to the entire action, that another suit, for the same cause of action, was pending at the time of suit brought, the proof shows that the first suit is only for part of the same matter sued for in the second suit, the pica fails.

Such jileas are not favored, and the party pleading must prove his plea as put.

It seems, if a man sues for rent for January and February, he is not to be denied a right of recovery for either month, simply because he had before sued for rent due in January, which suit was still pending.

Baldwin, J. delivered the opinion of the Court—Terry, C. J. concurring.

[41]This suit was brought to recover rent. The rent is alleged to be due on a lease, executed by the plaintiff to the defendants, of a lot in the city of San Francisco. The lease bears date February 1st, 1855, runs for ten years, and provides for the payment of the monthly rent of three hundred and fifty dollars, in advance, commencing on March 1st, 1855. The complaint alleges, that at the commencement of the suit, the defendants were indebted to plaintiff in the sum of twenty-one hundred dollars, being the monthly rent from November 1st, 1856, to May 1st, 1857.

The defendants plead, in abatement of the writ, that there was pending in the same Court, and between the same parties, another suit upon the same cause of action. The ease was tried by the Court. Plaintiff offered in evidence the indenture of lease. The defendants offered in evidence the complaint, filed in the same Court, on the 7th of February, 1857, by the plaintiff against the defendants, to recover the sum of fourteen hundred dollars rent, for the same premises, from the 1st day of November, 1856, to the 1st day of March, 1857, including the months of November and December, and January and February, 1857. The defendants then offered in evidence an extract from the minutes of the last mentioned cause, made on the 17th of April, 1857, showing that the cause had been submitted to the Court— a jury having been waived—for trial, and taken by the Court under advisement.

The plaintiff then offered in evidence the whole judgment recovered in this last case; to which defendants objected; and the objection was overruled. The record consisted of the pleadings in the cause, a notice of discontinuance served on the Clerk of the Court, dated April 27, 1857, and filed the same day, and a judgment of dismissal rendered on the 11th of July, 1857.

The Court on this proof, found the existence and execution of the lease, and that at the time of the commencement of this suit there was due from the defendants to the plaintiff, for rent from the 1st day of November, 1856, to the 1st day of May, 1857, twenty-one hundred dollars, and rendered judgment for the plaintiff, with interest. There is nothing in the finding on the subject of the plea in abatement. The defendants moved for a [42]

Thompson v. Lyon

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