
    Andrew Guinn, Appellant, v. Almira Elliott et al., Appellees. Almira Elliott, Appellee, v. Andrew Guinn et al., Appellants
    
    Plea in Abatement: parties. Where the issues and the real par-1 ties in interest are identical in two actions pending at the same time and the nature of the actions such that the interests of the parties must be determined, a plea in abatement on the ground that another action is pending is proper, although the parties plaintiff are not the same in both, actions.
    Abatement of Actions. Where two actions were pending between 2 the same parties and at the same time, and on account thereof a plea in abatement was filed in each, but the court had not ■ acquired jurisdiction in both, it should have proceeded to determine the one in which there was complete jurisdiction and abate the other.
    
      
      Appeal from Appanoose District Gourt. — Hon. C. W. Vermillion, Judge. -
    Thursday, February 18, 1904.
    These are each actions to partition the same tract of land. A petition was first filed in the case of Guinn v. Elliott et al., and a notice by publication as to the nonresident defendants was first completed in that case. A petition was filed, in the case of Elliott v. Guinn, and an original notice of that action was first placed in the hands of the sheriff, and first served. In the case first above entitled, Almira Elliott filed a qfiea in abatement, based upon the pendency of her suit against the plaintiff. This case was first tried, resulting in a decree abating the action. Thereafter, and on the same day, and on the same evidence, the court tried the second case, resulting in a decree for the partition of the lands as prayed. Plaintiff in the first suit — Andrew Guinn — who was a defendant in the second, appeals.
    
    Reversed.
    
      G. F. Eo'well and W. R. O. Kendrich for appellant.
    
      Frank 8. Payne for appellee.
   Debmer, O. J.

The two suits are for the partition of the same property. There is no question but that Andrew Guinn owned an undivided nine-fourteenths; Almira Elliott, two-sevenths \ and John Helm, a nonresident, 0BLe-fourteenth. Their respective shares and interests were established and confirmed by the decree entered in the second case above entitled. In each case there was a plea in abatement on the ground of another suit pending, but the plea was sustained in the first case, and denied or dismissed in the other. The real parties in interest are the same in the two eases. Plaintiff in the first suit made some parties defendant who were not named in the second, but these parties were merely nominal, and his petition shows that they had no interest in the land. Plaintiff in the second suit made the real parties in interest defendants to her action. The decree fixing the interests of the respective parties is not complained of, save in one particular, which we shall hereafter notice. As the parties in the cases are the same, the issues identical, and the suits such that the interests of the respective parties must be determined, we think the rule that another action pending is a good plea in abatement obtains, although the parties plaintiff are not the same in the two suits. The cases came within the exception noted in Pratt v. Howard, 109 Iowa, 504. It is manifest that these two suits could not proceed at the same time, and that a finding in one would be a complete bar to a decree in the other. The same evidence would support a decree in either case, and whatever was done in one would constitute a bar in the other.

On the face of it, the only question involved is one of ' costs. The first action was dismissed at plaintiff’s costs, '/amounting to something like $25. He or his attorneys also ^osi; an attorney’s fee which a court is authorizecj to tax in such cases. If this were all, we should not feel like interfering. But it appears in the record that Guinn first filed his petition, and first acquired full service of notice, and that Almira Elliott has not yet obtained good service of notice on Helm, the nonresident who owned an interest in the property. The decree, when entered, should be valid and binding on all of the parties, and, if the service was such that no valid decree’could be entered, then there was no other action pending. In other words, it must appear that the prior action had been technically commenced when the latter ac.tion was instituted. If commenced as to one of the parties only, it is not technically commenced, for the reason that it could not go to a final decree. The petition was first filed in the Guinn case. The original notice was placed in the hands of the sheriff on October 8th, and served on Almira Elliott on October loth. In the Elliott case the notice was placed in the hands of the sheriff on October 14th. As between these parties, Almira Elliott’s action was first com-men red. But in each, case there was a nonresident — John Helm. As to him, Guinn made the necessary affidavit for publication on October 2d, before any publications were made, and the service was complete as to Helm on October 23 d. In the Elliott case no affidavit for publication was filed until October 14th, and she relies upon publication made October 6th, 13th, 20th and 27th. Manifestly, her action against Helm has never been properly commenced. Priestman v. Priestman, 103 Iowa, 320, and cases cited. The decree rendered against Helm -was of no validity, and did not, therefore, conclude him. It appears, then, that Guinn’s action, as to Helm was first commenced, and that Elliott's action, as to Guinn, was first brought; and it further appears that plaintiff Guinn properly commenced his action as to Helm, and that plaintiff Elliott has never done that which gave the court jurisdiction as to him. Should we say that, as to one of the parties, Guinn was first in point of time, and, as to the other, that Elliott was first, we would have a case where neither was really first as to time,’ and the equities would be equal. Such being the situation, we think the trial court should have disposed of the case which first appeared upon the docket, to wit, the Guinn Case. But as no jurisdiction was obtained over Helm in the Elliott Case, we think there was no action commenced against him by Elliott, and that, as he was a necessary party to the suit, the trial court should have overruled the plea of abatement in the first suit, and sustained it in the second, and that partition should have been granted in the first one.

The decree in each case will therefore be reversed, and the cases remanded for decrees in harmony with this opinion. ■ — Reversed and remanded.  