CURRENT LAW A COMPLETE ENCYCLOPÆDIA OF NEW LAW VOLUME III. ABATEMENT AND REVIVAL ΤΟ INDIANS GEORGE FOSTER LONGSDORF, EDITOR ST. PAUL, MINN. 1905. 3 § 3. (10). § 4. Revival and Continuation (10). Various Scope. It is not attempted here to treat of criminal prosecutions,1 nor of bills of revivor, or revival of judgments, or of statute barred causes of action. writs are abatable for defects, which matters are not germane to this title." § 1. Causes for abatement."-The pendency of another action between the same parties, and for the same cause, and prior in time," is ground for abatement. 8 1. Indictment and Prosecution, 2 Curr. L. all the insurance and making defendants 307. 2. 3. Equity, 1 Curr. L. 1066, et seq. 4. 5. others named as beneficiaries, and claiming Limitation of Actions, 2 Curr. L. 757. pecially where after the death of the in- sured they had assigned a part of their 6. See 1 Curr. L. 1. claim to a third party not made a party de7. Where a party is plaintiff in one ac- fendant by the testatrix. Clement v. Clemtion and defendant in a subsequent one re- ent [Tenn.] 81 S. W. 1249. The pendency of lating to the same subject-matter in which a suit to enjoin the removal of ore from a she sets up in defense the same matters she mining claim as ancillary to an action of alleged in her complaint, a plea of prior ac- ejectment to recover possession of the part tion pending is not available as against the from which the ore was being taken is not defense. Rodney v. Gibbs [Mo.] 82 S. W. a bar to a suit to quiet title to the entire 187. The pendency of a prior action between claim, including extralateral rights not in the same parties is ground for abatement. controversy in the prior action. Empire Cahill v. Cahill [Conn.] 57 A. 284. It is be- State-Idaho Min. & D. Co. v. Bunker Hill & tween the same parties when the defendant S. M. & C. Co. [C. C. A.] 121 F. 973. Adis the successor in interest of the defendant ministratrix sued for a lien, and the heirs to in the former suit. Wetzstein v. Boston & be adjudged the owners, not the same cause. M. Consol. Copper & Silver Min. Co., 28 Mont. Row v. Johnson, 25 Ky. L. R. 1799, 78 S. W. 451, 72 P. 865. The issues in a suit in par- 906. An action for libel pending against a tition were identical and the real parties party for a publication on a certain day will in interest the same, though in the later case not abate the entire action against another the plaintiff had joined some nominal par- for the same publication on the same and ties. Guinn v. Elliott [Iowa] 98 N. W. 625. other days. Holmes v. Clisby, 118 Ga. 820, 45 The pendency of an appeal by a creditor S. E. 684. Action to foreclose a mortgage and from a judgment in favor of a garnishee is an action in ejectment. Howard v. Hewitt, not ground for abatement of an action 139 Cal. 614, 73 P. 414. Action by an agent brought in the same court against the garnishee by the debtor, but such action should be postponed until the appeal is decided (Rieden v. Kothman [Tex. Civ. App.] 73 S. W. 425); nor can a suit by an administrator be pleaded in abatement to a suit by the heirs under circumstances of this case (Row v. Johnson, 25 Ky. L. R. 1799, 78 S. W. 906). 8. Where one had filed an intervening petition asking to have claims allowed out of the assets in the hands of a receiver, and after an order of the court so directing, creditors brought suit in a state court therefor, and then filed a supplemental intervening petition asking that their claim be declared a preferential one, one suit could not be pleaded in abatement to the other. Trimble v. Kansas City P. & G. R. Co. [Mo.] 79 S. W. 678. Pendency of a suit by an executrix on a benefit insurance policy, claiming that children of the insured were entitled to 3 Curr. Law-1 for value of services no bar to an action by the principal for an accounting. Jordan v. Underhill, 91 App. Div. 124, 86 N. Y. S. 620. An action for unexcused neglect to present a will to probate no bar to an action for unexcused neglect to accept the trust or give notice of his refusal to accept. Richardson v. Fletcher [Vt.] 56 A. 981. Where misconduct is set up as a counterclaim in an action for services, it cannot be used again as to different items in a subsequent action on the judgment rendered therein. Newman V. Gates [Ind. App.] 67 N. E. 468. The pendency of an action commenced by a testator to enjoin the operation of an elevated railroad in front of his premises is no bar to a suit by a testator's devisee for injunctive relief and the recovery of damages sustained since he acquired title. Hirsh v. Manhattan R. Co., 84 App. Div. [N. Y.] 374, 13 N. Y. Ann. Cas. 158, 82 N. Y. S. 754. An action by a minor to (1) 53506 |