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Limitations on Priority Rule

A prior action pending is a ground for abatement of a second action.  If a second action is based on same cause of action and between same parties as of a prior action, the second action is abated.  Generally, a prior action is not abated for the reason that a subsequent action is commenced for same cause of action.  However, in Seaboard Surety Co. v. Gillette Co., 75 A.D.2d 525 (N.Y. App. Div. 1st Dep’t 1980), the court held that priority is not necessarily the controlling factor to dismiss an action based on pendency of another action between the parties. There are certain circumstances in which the prior action is abated and not the second one.  The circumstances are:

  • second action embraces the subject matter more fully and is brought in good faith
  • abatement of the second action results in loss of substantial rights to a person
  • prior action is defective
  • under public interest, if prior action is to be abated

For the priority rule to be fully effective, the courts have to be of equal general jurisdiction[i].  In Kehr v. Kehr, 173 Neb. 532 (Neb. 1962), court observed that general rule is that the commencement of a second action for the same cause of action cannot be pleaded in abatement of the first action.  However when the second action embraces the subject matter more fully than the first, the court may abate the first action and permit the parties to proceed in the second and thus avoid a multiplicity of action.  At common law and in the earlier practice courts applied the priority rule with strictness.  Now decisions of courts are more liberal and courts see that a person is protected from being harassed and vexed by the pendency of two actions at the same time to recover the same demand.[ii] If abatement of second action results in loss of substantial rights to a person the courts will abate the prior action.  Further pendency of a prior action would not abate the second one if the first action is defective and the second action is necessary to secure the demand.[iii] Also, if under public interest prior action is to be abated courts will not apply the priority rule and abates the prior action.[iv]

[i] Kaye v. Penn Aluminum Constr. Co., 1954 Pa. Dist. & Cnty. Dec. LEXIS 111 (Pa. C.P. 1954)

[ii] Brown v. Brown, 110 Me. 280 (Me. 1913)

[iii] Moser v. John F. Buckner & Sons, 320 S.W.2d 900 (Tex. Civ. App. Waco 1959)

[iv] Kiehn v. Love, 143 Ill. App. 3d 434 (Ill. App. Ct. 1st Dist. 1986)

Inside Limitations on Priority Rule