Glasser, Kuder & Ottensoser v. Hackett

Citations

• 37 Fla. 358

Syllabus

<p>1. As a general rule the law presumes that a single cause of action-can be tried and determined in one suit, and will not permit a plaintiff to maintain more than one action against the same party for the same cause at one time.</p> <p>2. The remedy for the defendant against whom two actions are-brought by the same plaintiff for the one cause is a plea in abatement to the second action. Such plea must show that the former action is still pending when the plea is filed, and it is a good reply to such a plea that the prior action has been dismissed. The reason upon which the rulé proceeds is that the first suit is effective and available and affords ample remedy to the plaintiff, and therefore the second suit is unnecessary, and consequently vexatious. Therefore, where it is shown that the former suit is ineffectual to accomplish its purpose, or that it has been dismissed, the second suit is necessary and not vexatious, and should not be abated.</p> <p>3. The principles stated in the preeeding.head-notes are applicable to writs of error. A writ of error is in the nature of a new suit! A motion to dismiss a writ of error because of the pendency of a prior writ of error is in the nature of a plea in abatement, and should not be granted where the first writ of error is wholly ineffectual to accomplish its purpose, or where it has been dismissed. (Mabry, C. J., dissenting).</p> <p>4. A writ of error without supersedeas does not remove the record from the court below in the sense that the lower court loses any control over it, or .power to enforce the judgment upon which the writ is taken. Neither does the issuing of a first writ of error exhaust the power of this court over the subject-matter. A second appeal or writ of error is allowed in this State when sued out within the statutory limitation, where the first has been dismissed for irregularity or want of jurisdiction.</p> <p>5. The absence from the transcript of the record of the order allowing time to present the