
    Bailey v. Bremond and another.
    The defendant to a suit which has been dismissed at his own instance cannot, by moving to set aside the judgment, &c., keep the suit pending, so as to bo an impediment in the way of a new suit on the same cause of action.
    Appeal from Harris. Suit was brought by the appellees against the appellant, on the 9th clay of April, 1S50, on a promissory note made on the 6t.h of the same month, payable one day after date. The defendant objected that the suit was prematurely brought. The court sustained the objection, and, on the 3d day of December, 1830, dismissed the case.
    On the 4th of December, 1850, the appellees brought the .present suit. On the next day (December 5, 1850) the defendant in'this and the former suit moved for a now trial in the former suit. The court overruled the motion, and the defendant gave notice of appeal.
    To this suit the defendant pleaded in abatement the pendency of a former suit between the parties on the same cause of action. In support of his plea in abatement be offered in evidence the record of the proceedings in the former suit, to which the plaintiffs objected, and their objection was sustained by the court. There was judgment for the plaintiffs, and the defendant appealed.
    
      J. B. Jones, for appellees.
   Wheeler, J.

The only error assigned which need be noticed is the excluding of the evidence offered in support, of the plea in abatement. And we are of opinion that it was rightly excluded. The evidence offered did not conduce to establish the truth of the plea. It showed that the former suit was not pending, bat was determined before tire institution of tills.

The motion of the defendant for a new trial in the former suit, made on the day after the commencement of this suit, was manifestly a mere contrivance to keep the former action pending for the purpose of pleading it in abatement of tiffs. But it was unavailing, for that suit liad been Anally'determined in favor of the defendant by a dismissal of the case at the costs of the plaintiff. There was nothing in the judgment adverse to the defendant, or which lie could in any manner, by any other proceeding, again draw in question. His motion for a new trial and notice of appeal were inoperative, and void, and, consequently, could not have the effect of protracting the pendency of the former suit.

There is no pretence of a meritorious defense, and we are of opinion that there is no error in tiie judgment, and that the appeal was taken for delay. Tlie judgment is, therefore, affirmed with damages.

Judgment affirmed.  