If the parties in both actions are identical and if both suits arise from the same acts[i], then abatement will not occur even if the relationship of the parties in the two actions is reversed. Likewise, if the cause of action in both suits is substantially the same, then the change or reversal of the position of the parties in the first suit are immaterial[ii].
For example, in divorce litigations, the fact that the plaintiff and defendant are reversed in the two actions is immaterial, since they are the same persons.
For abating a second suit brought by the defendant, it must appear that the matters pleaded in the second suit could be set out as an affirmative defense, counterclaim, or setoff, and could be litigated in the first suit itself[iii]. If a party will get adequate relief in a pending cause in the same court, then the party will not be allowed to approach for remedy in a separate suit[iv]. However, if the relief is not available, then the second suit will not abate.
In Annie Gardner Foundation v. Gardner, 375 S.W.2d 705 (Ky. 1963), a guardian filed a will contest action which alleged that certain documents presented to probate as the last will and testament of the decedent were not properly executed. The appellants filed a separate complaint that sought injunctive relief for the dismissal of the will contest action by the guardian.
The court ruled that although the parties vary in some degree between those in the will contest action and the injunction action, the variance was not substantial enough to deny the application of the doctrine of abatement. Hence, the court sustained the guardian’s motion to abate and dismiss the organization’s action for injunctive relief to require the guardian to dismiss her will contest action.
[i] Daly v. White, 100 Cal. App. 2d 22 (Cal. App. 1950)
[ii] Annie Gardner Foundation v. Gardner, 375 S.W.2d 705 (Ky. 1963)
[iii] Nielsen v. Nielsen, 3 Conn. App. 679 (Conn. App. Ct. 1985)
[iv] Olson v. Leith, 71 Wyo. 316 (Wyo. 1953)