Abatement is either a stay or a dismissal of a suit[i]. In common law, abatement is dismissal of a suit whereas in equity; abatement is suspension of a suit[ii]. Abatement is the complete extinguishment of a cause of action[iii]. The purpose of abatement is to save the time and expense of a trial when the suit of the plaintiff cannot be maintained in the form it was originally presented.
The essential requisites of the plea or defense of another action pending are:
- Both suits must be based on the same or substantially same cause of action[iv] and relief;
- Both actions must arise out of the same transaction[v];
- Causes need not be identical, but a substantial similarity is required[vi]
There are certain tests that determine identity of cause of action in two suits for the purpose of abatement. They are:
- Whether the same relief is obtained in the first action[vii];
- Whether the judgment obtained in one suit is pleaded in bar, or as res judicata against the other[viii];
- Whether all the actions between the parties can be determined in prior action[ix];
- Whether the same evidence supports both actions[x].
If the above mentioned conditions are fulfilled, then the subsequent suit can be abated. However, if a judgment in the first action does not constitute a restriction to the subsequent action, then a subsequent action can be made[xi].
[i] Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148 (5th Cir. Tex. 1992)
[ii] Baer v. Fahnestock & Co., 565 F.2d 261 (3d Cir. Pa. 1977)
[iii] State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub, 668 S.W.2d 72 (Mo. 1984)
[iv] Weaver v. Early, 325 N.C. 535 (N.C. 1989)
[v] Catalano v. Aetna Casualty & Surety Co., 105 Ill. App. 3d 195 (Ill. App. Ct. 2d Dist. 1982)
[vi] Hartley v. Coker, 843 S.W.2d 743 (Tex. App. Corpus Christi 1992)
[vii] Tebbs v. Union Realty Corp., 286 F. 1011 (D.C. Cir. 1923)
[viii] Hill v. United Ins. Co. of Am., 998 F. Supp. 1333 (M.D. Ala. 1998)
[ix] Green Tree Acceptance, Inc. v. Midwest Federal Sav. & Loan Asso., 433 N.W.2d 140 (Minn. Ct. App. 1988)
[x] Hill v. United Ins. Co. of Am., 998 F. Supp. 1333 (M.D. Ala. 1998)
[xi] McLeod v. McLeod, 1 N.C. App. 396 (N.C. Ct. App. 1968)