
    [No. 9017.
    In Bank.
    December 27, 1886.]
    ASA FISK, Respondent, v. DAVID ATKINSON et al. JAMES BYRNES, Appellant.
    Abatement of Action—Similar Action between the Same Parties — Pendenct of Appeal. —An action commenced during the pendency of an appeal in a prior action between the same parties, and for the same cause of action, will be abated.
    Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
    The facts are stated in the -opinions.
    
      Joseph Mee, for Appellant.
    
      A. Campbell, Sen., and Campbell & Sanderson, for Respondent.
   Foote, C.

We adhere to the opinion formerly expressed by us in this cause, which was approved by Department Two of this court.

In the action instituted in San Mateo County, the pendency of which was pleaded in abatement of the present suit, a demurrer was sustained to the complaint, and the plaintiff declining to amend his pleading, judgment passed for the defendants. From that judgment an appeal was taken by the plaintiff, pending which the present suit for the same cause of action, between the same parties, was brought in the city and county of San Francisco.

The plaintiff had an opportunity in his former action do have amended his complaint, but did not choose to do so, preferring rather to prosecute an appeal from the judgment rendered therein, and to commence another suit, with the same subject-matter, against the same parties in another county, without dismissing that appeal; his last action was therefore unnecessary and vexatious, and should be abated, and the judgment in this cause should be the same as that heretofore rendered by Department Two.

Belcher, C. C., and Searls, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded, with directions to the court below to enter judgment in favor of defendant Brynes, that the action abate, and for his costs and disbursements.

The following is the opinion above referred to, rendered on the 24th of May, 1886:—

Foote, C.

This is an appeal from a judgment rendered in an action on an undertaking for the release of an attachment, and an order denying the defendant a new trial. As one of his defenses set up in his answer, Byrnes (Atkinson not having been served with process) alleged that there was another action pending against him, brought by the same party plaintiff, for the same cause of action. Findings of fact were waived, but the statement in the record of this cause plainly indicates that the contention of the defendant is true, and that at-the time the present action was instituted there was another action pending and undecided, brought by the same plaintiff against the same defendant, and for the same cause of action, and the latter should have had judgment rendered in his favor in the trial court that the present action be abated. The judgment and order appealed from should therefore be reversed, and the-court below directed to enter judgment in favor of the defendant that this action abate, and for his costs and. disbursements.

Searls, C., and Belcher, C. C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded, with directions to the court below to enter judgment in favor of defendant Byrnes, that the action, abate, and for his costs and disbursements.

Rehearing denied.  