Renner & Bussard v. Marshall

(COMMON LAW.) Renner & Bussard v. Marshall. The commencement of another suit for (ho same cause of action in the court of another state since the last continuance, cannot be pleaded in abatement of the original .suit, íf matter in abatement is pleaded pais darrein continuance, the judgment, if against the defendant, is peremptory. Where the action is brought for a sum certain, or which may be ren- . dered certain by computation, judgment for the damages may b& entered by the court without a writ of inquiry. Error to the circuit for the district of Columbia for Washington county. The defendant in error, at June term, 1813, declared against the plaintiffs in error in assumpsit, upon an inland bill of exchange drawn by one Rootes on Renner & Bussard, and accepted by- them; to which declaration they pleaded non-assumpsit, and issue was thereupon joined, and the cause was continued to December term, 1813. At that tcjrm the plaintiffs in error appeared and pleaded, “ that, after the, last continuance of the plea aforesaid, to wit, the first Monday of June, in the year one thousand eight hundred and fourteen, from which day the plea aforesaid was farther f'ontinued here until this day, to wit, the fourth Monday of December, in the year last aforesaid, and before this day. to wit, on the nineteenth day of October, in the year last aforesaid, befortí thp superior court of chancery of the commonwealth of Virginia, &c., the plaintiff exhibited his certain bill of complaint' against the defendants, &c.; and also against one Anthony JBufek and one Miles Do wson, complaining and alleging in his said 'bill, that on the twelfth day of October, in the year one thousand eight hundred and twelve, Thomas R. Rootes drew his bill of exchange upon the defendants, &c. And the said defendants farther say, that the plea aforesaid, for which the said defendants, by the said plaintiff in the said bill of complaint mentioned-, are impleaded in the said superior court of chancery as aforesaid, is for the same identical matter and cause of action, of, and. for which the said plaintiff hath now impleaded the said defendants, Renner & Bussard,” &c. To which the plaintiff replied the prior pendency of the suit in the circuit court; and the defendants rejoined in substance the samematters as contained in their plea, whereupon the plaintiff demurred specially. Upon Which "the court rendered judgment, “that the piea of the said Daniel Renner and Daniel Bussard by them above pleaded, to the writ and declaration of the said Horace'Marshall, and the plea of the said Daniel Renner and Daniel Bussard, by way ©f rejoinder to the said replication of the said Horace Marshall, and the matters therein contained, are not sufficient in law to preclude liim, the said Hoíáce Marshall, from maintaining his action aforesaid 5 therefore it is considered by the court here, that the aforesaid Horace Marshall.recover against the said Daniel Renner arid Daniel Bussard,. as well the sum ©f, &c., his damages,” &c. The cause was argued by Jones and Key, for the plaintiff in error, and by Lee for the defendant in error. [MAJORITY — Story, J.,] Story, J., delivered the opinion of the court. The first question in this case is, whether the commencement of another suit for the same cause of action in the court of another state, since the last continuance, can be pleaded in abatement of the original suit. It is very clear that it cannot. A subsequent suit may be abated by an allegation of the pendency of a -prior suit; but the converse of the proposition is, in personal actions, never true. The decision of the circuit court of the district of Columbia overruling the plea was therefore correct. The next question is, whether the judgment rendered bn the overruling of the plea ought to have been peremptory, or an award oí respondeos ouster. This point is completely settled by authority. If matter in abatement be pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory as well on demurrer as on trial. The last question is, whether judgment could be entered up for the plaintiff for the amount of his damages by the court, without a writ of inquiry. This also is-completely settled by authority' in all eases whether the action is brought for a sum certain, or which may be made certain by computation. Judgment affirmed with costs. The exception rei judicatie applies only to final or definitive sentences in another state, or in a foreign court, upon the merits of .the case; and the rule has even been applied to the pendency of a cause in an inferior court in the same state. 9 Johns. Rep. 221. Bowe v. Joy, and the authorities there cited. Serf queers, if it were alleged that the inferior, court had jurisdiction? Fitzg., 314. But whether the suit be pending in a foreign or a domestic court, a prior suit cannot be abated by the allegation of the pendency of a suit subsequently brought. See 1 Chilly on Plead. 636. See 2 Williams’ Saunders, 107. Holdip v. Otway, note 2. 5 T. R. 87. Maunsell v. Lord Masareene, 8 T. R. 326. Butler v. Street. 8 T. R. 395. Nelson v. Sheridan. 8 T. R. 410. Byron v. Johnson, Dougl. 302. Theluson v. Fletcher. 1 H. Bl. 352. Rasbleigh v. Salmon. 1 H. Bl. 529. Andrews v. Blake. 1 H. Bl. 541. Longman v. Fenn. 3 Dall. 355. Brown v. Van Braam. 1 Dall. 185. Graham v. Bickham. 4 Dall. 149. Graham v. Bickham.