Opinion
File No. 48329
David Goldstein, George A. Saden, Attorneys for the Plaintiff.
Pullman Comley, Harry Kursman, Special, Attorneys for the Defendant.
Plea in abatement; even though a former action is pending at the time of the institution of a second action, if that former action is terminated at any time prior to the hearing on a plea in abatement in the second action, the former action does not abate the second action.
MEMORANDUM FILED OCTOBER 8, 1935.
This action was instituted by the service of process on the defendant on August 22, 1935 and was returnable to the first Tuesday of September. The plea in abatement was filed on September 3rd.
At the time the plea in abatement was filed there was pending in the Court of Common Pleas an action on the same cause of action between the parties instituted on June 30, 1935. Whether or not that action was ineffectual because of the limited jurisdiction of the Court of Common Pleas, it is not necessary to decide. In that action, on September 27, 1935 and before the trial of the plea in abatement to the present action, the plaintiff filed a withdrawal of action.
That withdrawal was filed as a matter of right under Sec. 6494, General Statutes, Revision 1930, and operated to terminate the action on the date upon which it was filed.
The modern and better rule is that even though a former action is pending at the institution of a second action, if that former action is terminated at any time prior to the hearing on a plea in abatement in the second action, the former action does not abate the second action.
1. R.C.L. 11 (Abatement Sec. 2).
1. C.J. (Abatement Sec. 132). Manufacturers Bottle Co. vs. Taylor Stites Glass Co., Mass., 593; 95 G. S. 103.