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Jurisdiction Required of First Forum

Jurisdiction is the power of a court to decide a case on its merits.  It is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment.[i] The pendency of a prior suit for the same cause of action, in a court of competent jurisdiction, between the same parties, will abate a second suit because courts consider the second suit unnecessary and vexatious.[ii] Courts order abatement of a subsequent suit only if court before which the first action is pending have jurisdiction of the subject matter.  When the court where the other action is pending does not have jurisdiction over the subject matter, an action is not abated upon the ground of another action pending between the parties.  If it appears to court that filing of second suit is vexatious and an abuse of the court’s process, court abates the second suit.[iii] The pendency of another action, in order to be available as a ground for abatement, should be properly presented to the court.[iv] A pending action which is ineffectual because of defects in process or service is not a ground for abatement.  In the case of an appeal filed from the ruling of first court, second court could abate an action pending before it.  If two or more courts have concurrent jurisdiction of the same subject matter, the court first acquiring jurisdiction by service of process retains the jurisdiction to the exclusion of the other.

If the second court does not have power to review the actions of the first court, the second suit is not abated.  Similarly when there is increase in amount of money damages in the second suit and the amount is outside the jurisdiction of the first court, the second suit is not abated on the ground of another suit pending.  Also second suit is not abated when a prior action is pending in the case of forcible entry and detainer by a landlord against his tenant.[v] Termination of a prior similar action after filing of plea in abatement is a sufficient ground to defeat the plea based upon the pendency of a prior action between the same parties and for the same cause.

[i] Perry v. Owens, 257 N.C. 98 (N.C. 1962)

[ii] International Printing Pressmen & Assistants’ Union v. Rebenson, 350 Ill. App. 156 (Ill. App. Ct. 1953)

[iii] Kruger v. White Lake Twp., 2002 Mich. App. LEXIS 498 (Mich. Ct. App. Apr. 2, 2002)

[iv]Gantner & Mattern Co. v. Switzer Bros., Inc., 11 F.R.D. 433 (D. Cal. 1951)

[v] Scissem v. Bradley, 167 Okla. 161 (Okla. 1934)

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