John G. Alt v. H. A. Ratterman et al.

[Special Term, 1870.] John G. Alt v. H. A. Ratterman et al. Where the defendant answers that another action is pending for the same cause, the answer can not be stricken out on motion though the former action has been dismissed. The answer may, however, be met by a reply that the former action has been discontinued and costs paid. Forrest $• Lindemann, for plaintiff. Gray, for defendants.' [MAJORITY — Taft, J.] Taft, J. This is a suit on a promissory note against several parties as makers and indorsers. The defendant pleads that there is another action pending for the same cause, and the plaintiff1 has made a motion to strike out the answer, because the former suit has been dismissed and costs paid. The case has been set down for trial, and the preliminary-question, arising upon the answer and motion, has been argued. By the former English practice the existence of a former action pending for the same cause of action, when the plea was filed, was fatal to the action, and such a defense is proper under the Code in Ohio. Nor can such an answer be struck out on motion. But the plaintiff may reply that the former suit has been since discontinued ®r dismissed, and the costs paid. Such was the holding in New York under the Code, 8 H. Pr. 86, where it is held, that the rule is well settled with us that upon a plea or answer of the defendant, showing the pendency of the first suit, it is competent for the plaintiff’ to discontinue the first suit, and a replication of such discontinuance is a good answer to the plea. Marston v. Lawrence, 1 J. Cas. 397; 1 Barn. & C. 649; Beals v. Cameron, 3 How. Pr. 414; 4 Hill, 166; 10 N. Y. 501. But the replication must show an ¿ctual discontinuance of the former suit. A notice that he will discontinue is not sufficient. The plaintiff can have leave to reply the discontinuance, and as to the motion which was placed on file in October, 1870, I can not suppose it will be a surprise to the defendant so as to make it necessary to postpone the case.