38 Ark.] NOVEMBER TERM, 1881. 203 Moore & Co. v. Emerick. MOORE & CO. V. EMERICK. 1. PLEADING AND PRACTICE: Defense of another suit pending, &c. A plea to an action for a debt that, prior to the commencement of the action, the plaintiff bad sued in another State and attached the property of the defendant sufficient to satisfy the debt, and that since the action the property has been sold, and the debt duly satisfied, will not bar a judgment for cost against the defendant in the pending action. - APPEAL from Lonoke Circuit Court. • Hon. J. W. MARTIN, Circuit. Judge. Sibley, for Appellant. The costs should have been tendered with the plea. 29 Ark., 544; 1 Ch. PL, 478, and notes x and c; 2 Bing. N. C., 88; 1 D., 693 ; 1 Ch. Pl., 485, note A ; 4 B. & C. 117; 6 D. & R., & B.) 81; 1 M. & P. Rep., (C. P.) 138. If plaintiffs had the right to sue in ale court of this State, • and to maintain both actions, (32 Ark., 332), they had the right to recover costs upon the merits. See also 1 Ch. Pl., top p., 466; 1 Tidd's Pr., (3 Am., 9
204 SUPREME COURT OF ARKANSAS, [38 Ark. Moore & Co. v. Emerick. Eng. Ed.) 683 ; 1 Harrison's Dig., 665 ; 7 East, 536; 3 Smith, 544; 6 Esp., 40 ; Hobb., 6 ; 1 Caneys, 599 ; 2 N. R., 99 ; 1 Taunt., 341; 0-. D., 393 ; 17 Ark., 435 ; 26 Ib., 662. EAKIN, J. This appeal involves only a matter of costs. Moore & Co., pending an action of attachment by them against Emerick, in Mississippi, brought also a similar action for the same debt in Lonoke county, and had an attachment there. He appeared and pleaded the proceedings in Missis-sippi, showing that, before the commencement of this suit, a quantity of property sufficient to pay the debt had been attached in the Mississippi suit, and the writ returned to the court there, at the April term, 1879, and that the goods had been afterwards sold by order of the court, the proceeds paid to plaintiffs and the debt satisfied. The answer further denied the grounds of attachment. The present action was commenced on the eighth day of January, 1879. The answer was filed on the fifth of March, 1880. The court, sitting as a jury, found for the plaintiffs, on the grounds of attachment, and also the facts above set forth with regard to the proceedings in Mississippi, and held that, as the plaintiff's claim had been satisfied in full out of the property which, at the commencement of this suit had been already attached in another tribunal, they were not "under the circumstances" entitled to costs in this. Judgment was entered accordingly, and plaintiffs appealed. The mere pending of a suit for the same cause of action in another State could. not be pleaded in abatement or in bar. (32 Ark., 332.) The satisfaction of the debt through the former attachment might be shown by plea in the nature of a plea puis darrein continuance at common law. It was something which did not exist when this suit began, and
38 Ark.] NOVEMBER TERM, 1881. 205 could not be used to show that this suit was wrongfully brought. At common law the plea could not, generally, be interposed as a complete bar to the suit. It went only to the further continuance of it, conceding that the prosecution of the suit to that time had been proper. Stephens on Pleading, 63; Chitty on Pleading, Vol. 1, p. 696. The plaintiffs should have had judgment for costs accrued up to the time of the plea. Reversed and remanded for further proceedings. •
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