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Pendency in Reviewing Court

A review proceeding generally may be pleaded in abatement of a second action.  The pendency of an appeal in one action is not a bar to the maintenance of a second action raising similar issues if abatement or continuance is not sought at trial of the second action.  [Neblett v. Pacific Mut. Life Ins. Co., 22 Cal. 2d 393, 400 (Cal. 1943)].

An action is deemed pending until final determination on appeal or review or until the time for such review has expired.  The second action can be abated although no appeal has been filed, if the time for appeal has not expired.

The pendency of an action in an appellate court may be set up in abatement of another action.   When a first suit has been dismissed but something remains for adjudication, a second suit should not be abated merely on the ground of pendency of an appeal from the dismissal. The rule rests on the proposition that the dismissal of the first suit does not lose its force by reason of the appeal.  [Solarana v. Industrial Elecs., 50 Haw. 22 (Haw. 1967)].

An action generally is not considered pending for the purposes of abatement of another action where the appeal is abandoned, the review proceedings are defective, or the appeal is dismissed.  However, if judgment is reversed on appeal and the cause is remanded, the action continues pending through a second appeal and can be pleaded in abatement.

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