
    Fox, Exr., v. The King Investment & Lumber Co.
    
      Abatement — Action against executor on decedent’s building contract — Not barred by. another action to foreclose mechanics’ lien, when — Foreclosure proceedings pending in sister state.
    
    In action against executor for balance due on building contract of decedent, it was no defense that action was pending in sister state for foreclosure of mechanic’s lien and for deficiency judgment against decedent and his wife.
    (Decided June 28, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Eli G. Frankenstein, for plaintiff in error.
    
      Messrs. Matthews & Matthews, and Mr. Anthony P. Conlon, for defendant in error.
   Hamilton, J.

Defendant in error obtained a judgment against the plaintiff in error in the court of common pleas of Hamilton county in an action on a building contract. From that judgment error is prosecuted to this court.

The error relied upon is the defense that there is another action pending in a court of Pueblo, Colo., between the same parties for the same cause.

It appears from the record that plaintiff in er ror’s decedent, John H. Kanfman, then a resident of Pueblo, Colo., entered into a written contract for the construction of a residence on certain lots for the named price of $2,500; that the lumber company proceeded with the construction; and that Kaufman paid $500 on account, leaving a balance of $2,000 due under the contract.

It appears that Kaufman and his wife had domestic difficulties, and Kaufman failed to pay the lumber company. Thereupon the lumber company filed a mechanic’s lien against the property, and the action was brought by the lumber company to foreclose the mechanic’s lien. The prayer was for foreclosure and sale, and for a deficiency judgment.

It developed that Kaufman’s wife was a half owner in the lots, and the lumber company made her a party in the action, and sought to hold her, notwithstanding she did not sign the contract.

Kaufman left Colorado while the action was pending, and came to Cincinnati, and took up residence here. He executed his will here, and died a resident of Cincinnati. The lumber company thereupon filed a claim against the estate, and, upon disallowance of the claim, filed suit against the executor of the estate of Kaufman, deceased.

The question for determination here is, Is the suit pending in the courts of Pueblo, Colo., a bar to this action here? Where it appears on the face of the petition that there is another action pending between the same parties for the same cause, the statute makes that a good ground of demurrer to the petition. And, if it does not appear on the face of the petition, it may be set up as a defense by answer, which was done in this case.

The action in Pueblo, Colo., was for foreclosure of a lien. Personal judgment was only asked in the event there was a deficiency. The action was against John A. Kaufman and Emma Kaufman.

In the case of Spence v. Insurance Co., 40 Ohio St., 517, the court held that an action to foreclose a lien in one action did not bar the right to maintain a separate action for a personal judgment. Under the facts pleaded in the answer, with reference to the cause of action pending in Colorado, it would appear that the actions in Colorado and in Hamilton county, Ohio, were not between the same parties, and the fact that the action in Colorado was for the foreclosure of a mechanic’s lien, with a plea for deficiency judgment, discloses that it was not the same cause of action.

It would seem, therefore, that the facts bring the case within the decision of Spence v. Insurance Co., supra. However that may be, the actions are pending in different states, and, in the case of Berger v. Moessinger, Fritsch & Co., 5 C. C., 432, 3 C. D., 212, the court held in effect that where an action is pending in a foreign country, or in a court of the United States, or 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.

The trial court was therefore not in error in holding the pending action in the court of Pueblo, Colo., not a defense to this action.

Judgment affirmed.

Buchwalter, P. J., and Cushing, J., concur.  