Happy family

Find a legal form in minutes

Browse US Legal Forms’ largest database of 85k state and industry-specific legal forms.


There are two types of parties involved in a lawsuit: plaintiffs and defendants.  The party who initiates a lawsuit is called the plaintiff.  The party against whom an action is brought is the defendant.  The plaintiff claims relief, usually monetary, or recovery against the defendant.  Laws relating to abatement vary from state to state.

The premature ending of a suit before final adjudication is called abatement of an action.  If reasons for abating a suit are not apparent on the pleading filed by the plaintiff, the defendant can move to abate the case.  However, if the defendant fails to claim for abetment in his/her answer, the defense will be waived.  Court considers a plea for abatement of an action before proclaiming a judgment as a judgment on the plea may affect the final decision in the case.

A defendant can plead for abating a suit under one of the grounds for abatement.  These grounds for abatement are: death of the party, premature commencement of action, another case is pending on the same issue, or the interest of a party in the case has changed or is transferred to another person.

Usually, a second suit will be dismissed when a same issue is filed before another court by the same parties in the same capacity.

Generally to avail the defense of abatement, a dispute should be between:

  • the same parties[i], or
  • substantially the same parties[ii] (For example; if at least one plaintiff and one defendant are common in both actions there is substantial identity of parties[iii].), or
  • at least parties who represent the same interest[iv].

However, to be identical in both cases, a party should have participated actively in a prior case.  If the party was only included in the first suit after the second suit was initiated then the later suit cannot be abated[v].  Even if the pleadings were amended to include names of the parties, actual participation is needed to abate a second suit[vi].

The general rule with respect to parties is that a previous suit must be between the same parties in the same capacity.  They must have held the same position as plaintiff and defendant in both the suits.

Even though parties in both suits are from the same jurisdiction a second case cannot be abated unless parties are the same in both actions, the matter in issue is the same, and the relief claimed is also same[vii].

In Rose v. Finley’s, Ex’r256 Ky. 565 (Ky. 1934), an executor of a note filed a suit against maker and surety of the note.  Subsequently, the executor filed a second suit against the same parties on the same issue while the first suit was pending.  The executor sought to dismiss the first suit without prejudice to the second suit.  Even though opponents objected, first suit was dismissed and the opponents sought review.  At the time when the second suit was filed the opponents’ request for review was pending in the court.  The court held that as the parties and the cause were the same, the second case should be abated.

When a claim involves the same subject matter and parties in a pending previous action, courts will adjudge the issue in the first action and the second action will be dismissed.  However, the previous action must be properly brought before court.  If there were defects in the previous suit’s service, or any other formal cause by which it might be defeated, the second suit will not get abated.  Thus for a second action to get abated, the previous suit must be entered in the court files and be actually pending at the time when the second suit commenced.

When plaintiffs in two actions are different, a first suit cannot abate a second one although other requisites for abatement are present[viii].  Plaintiff of a suit can be impleaded in a prior pending suit on a same subject matter.  This is not a ground for abatement of the second suit instituted by the plaintiff.  When there is a prior suit, abatement of the later one occurs only when parties are actively participating in the prior suit.

Moreover, a plaintiff should occupy same status in both suits to abate a later one[ix].  If a plaintiff files two suits against the same defendant in different capacities, the first suit will not abate the second one.  In Pansy v. Massola, 207 Misc. 908 (N.Y. Sup. Ct. 1955), a wife met with an automobile accident that resulted in her death.  Husband was the administrator of wife’s estate.  The husband filed an action in the in the capacity of an administrator claiming wrongful death, medical expenses, funeral and burial expenses.  Another action was also filed by the husband on an individual capacity claiming loss of the wife’s services by reason of her injuries and her death.  The defendant filed a motion to dismiss the complaint filed by the husband as administrator contending that the issues were pending in another court.  As both the cases filed by the husband were in two different capacities and sought different relief, the court found that, the prior suit did not abate the later one.

Another general rule is that when a defendant is the same in two cases, the second case cannot be abted unless the same address of the defendant is provided in both cases[x].  However, a defendant can not be vexed without reason by successive proceedings for the same cause of action.[xi].

Where plaintiffs are the same in both suits, and some of the defendants in the second suit were defendants in the prior suit, the common defendants may contend pendency of a prior action[xii].  This contention can be made even if there are additional defendants in the prior action.  Similarly when a third person is added as a party defendant in the second case, the right of the common defendants in both the cases to abate the second case remains intact[xiii].

Most state laws dictate that at least one plaintiff and one defendant should be in common in each action to dismiss a suit.  At least substantial identity of parties in both cases is necessary to abate an action in the subsequent case.  In Proietto v. Donohue, 189 A.D.2d 807, 808 (N.Y. App. Div. 2d Dep’t 1993), an individual was a defendant in a second suit arising out of the same sale of a travel agency business.  The individual was the sole party who was common in both actions.  Wives of the plaintiffs in the first suit were plaintiffs in the second suit.  Court held that this was insufficient reason to dismiss the second case since there was no substantial identity of the parties.

A plea of abatement by additional defendants in a second suit will defeat the suit, if the relief sought in the second action can be attained through the first case itself.  In many jurisdictions, a plea of abatement by the additional defendants sustains when their liabilities are dependent on the liabilities of the original defendants.  In such cases, parties added in the second suit are considered unnecessary parties.  In Stark v. Crowel, 117 Vt. 413 (Vt. 1953), a passenger filed a case against the owner and driver for negligent operation of a motor vehicle.  Later the passenger dismissed that case and filed another one holding the owner and driver jointly and severally liable.  The owner and driver contended that the two cases were the same.  Court decided that a written notice of discontinuance to the owner and driver by the passenger amounted to discontinuance of the first case, and hence it did not affect the passenger’s right to bring another case.

In certain states when a different or further relief is sought in a second case, a plea to abate the second case will not sustain.  Subject in issue in both cases may be the same and defendant may also be a common party, still the second case does not abate due to change in the relief sought[xiv].

[i] State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub, 668 S.W.2d 72 (Mo. 1984)

[ii] Philips Elecs., N.V. v. New Hampshire Ins. Co., 295 Ill. App. 3d 895 (Ill. App. Ct. 1st Dist. 1998)

[iii] Morgulas v. J. Yudell Realty, Inc., 161 A.D.2d 211 (N.Y. App. Div. 1st Dep’t 1990)

[iv] Annie Gardner Foundation v. Gardner, 375 S.W.2d 705 (Ky. 1963)

[v] Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex. 1988)

[vi] Farmers Nat’l Bank v. First Colored Baptist Church, 277 Ky. 521 (Ky. 1939)

[vii] Swenson v. Thibaut, 39 N.C. App. 77 (N.C. Ct. App. 1978)

[viii] Maryland Casualty Co. v. Hendrick Memorial Hospital, 141 Tex. 23 (Tex. 1943)

[ix] Janet Parker, Inc. v. Floyd, 269 Ga. App. 59 (Ga. Ct. App. 2004)

[x] Daly v. White, 100 Cal. App. 2d 22 (Cal. App. 1950)

[xi] Pappas v. Maxwell, 337 Mass. 552 (Mass. 1958)

[xii] Chapple v. National Hardwood Co., 234 Mich. 296 (Mich. 1926)

[xiii] Zachs v. Public Utilities Com., 171 Conn. 387 (Conn. 1976)

[xiv] Beehler v. Beehler, 100 Cal. App. 3d 376 (Cal. App. 3d Dist. 1979)

Inside Parties