Land v. Ferro-Concrete Const. Co.

Citations

• 221 F. 433
• 1915 U.S. Dist. LEXIS 1592

Syllabus

<p>1. Abatement and Revival @=12—Pendency on Another Action—Action in State Court.</p> <p>The pendency of a suit in a state court does not abate an action in a federal court, though the causes of action are identical.</p> <p>LEd. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 87-91, 91, 95, 98; Dec. Dig. @=12.]</p> <p>2. Removal of Causes @=95—Splitting Causes—Waiver.</p> <p>Under Civ. Code Prac. Ky. § 83, providing that several causes of action may be united, if each affect all parties to the action, may be brought in the same county and prosecuted by the same kind of an action, and if all are brought upon contracts express or implied, where plaintiff brought two actions, in one of which he sought to recover the amount earned under a contract prior to October 16th, and in the other the amount which he would have made subsequent to that date had defendant not refused to permit him to perform, defendant had the right at its option to compel a consolidation of such suits; but, having removed one of them to a federal court without seeking to compel a consolidation, he waived his right to insist that there should have been a consolidation, or that plaintiff should have been required to elect which suit he would prosecute, or to object to the splitting into two parts of a single cause of action, assuming that there was only one cause of action, especially where a plea in abatement because of the pendency of the other suit referred only casually to the splitting of the cause of action.</p> <p>[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 204, 205; Dec. Dig. @=95.]</p> <p>3. Abatement and Revival @=12—-Actions in State Court and Federal Court.</p> <p>An action commenced in a state court and removed to a federal court was thereby brought within the rule that the pendency of an action in a state court does not abate an action in a federal court.</p> <p>[Ed. Note.—For other eases, see Abatement and Revival, Cent. Dig. §§ 87- 91, 94, 95, 98;