
    No. 662
    FOX, Excr. v. KING LUMBER CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2866.
    Decided June 28, 1926
    27. ACTION — 1. Action pending in a court of a sister state, even though between same parties and for same cause, does not constitute a defense to an action in this state.
    2.An action to foreclose a mechanic's lien in an action does not bar the right to maintain an action for a personal judgment.
    Attorneys — Eli G. Frankenstein for Fox; Matthews & Matthews and A. P. Conlon for Lumber Co.; all of Cincinnati.
   HAMILTON, J.

The King Investment and Lumber Co. obtained a judgment against Julius Fox, executor of the estate of John Kaufman, deceased, in the Hamilton Common Pleas on a building contract. It seems that Kaufman, when he entered into the contract for the construction of a residence, was a resident of Pueblo, Colo-. rado. The price was $2500 of which $500 was paid.

Kaufman had domestic difficulties and failed to pay the balance. Thereupon the Company filed a mechanic’s lien against the property, in Colorado, and an action was brought to foreclose the lien. Kaufman’s wife was made,a party to the action, she being a half owner; although she did not sign the contract.

Kaufman left Colorado while the action was pending. He died a resident of Cincinnati. Upon disallowance of its claim against the estate, the Company filed suit in Ohio. Error was prosecuted from the judgment by the executor, claiming that there was another action pending in a Colorado court between the same parties for the same cause. The Court of Appeals held:

1. Where there is another action pending between the same parties in the same cause, it presents a good ground for demurrer; or it may be set up as a defense in the answer as was done in this case.
2. The action in Pueblo County was against John and Emma Kaufman for foreclosure of a lien.' Personal judgment was asked for only in the event of a deficiency.
3. The action in Hamilton County and the one in Colorado are not between the same parties; and an action to foreclose a lien in an action does not bar a right to maintain an action for personal judgment. 40 OS. 517.
4. However this may be, where an action is pending in a foreign country or in a court of a sister state, such pending action would not constitute a defense to an action between the same parties for the same cause in this state. 5 O. C. C. 432.
5. The lower court did not err in holding the pending action in Colorado was not a defense to this action.

Judgment affirmed.  