Distinction Between Abatement and Stay

Generally, the terms abatement and stay are used interchangeably.  But courts distinguish the two terms on several grounds.  Courts issue an order of abatement as a matter of right and not as a matter of discretion.[i] In Williamson v. Tucker,[ii] the court held that while abatement is granted as a matter of right, a motion to stay is the discretion of court.

Pendency of an action between same parties and relating to the same subject matter is not pleadable in abatement of a subsequent action in different jurisdiction.  When a question of abatement or stay arises in a court in determination of a pending action in another jurisdiction, a stay merely results in the temporary cessation of the proceedings, while abatement generally constitutes a complete dismissal or discontinuance of the action.  The power to stay proceedings is incident to the power inherent in every court to control the disposition of cases.[iii]

In Simmons v. Superior Court of Los Angeles County[iv], the court held that abatement and stay of proceedings are in some respects similar but they are not identical.  Some of the points noted by the court while distinguishing abatement from stay are:

  • To abate a suit is to put an end to its existence.  But stay is only temporary cessation.
  • Abatement is ordinarily granted as a matter of right.  Stay is issued as a matter of discretion.
  • Pendency of a prior suit in one state cannot be pleaded in abatement in another state.  Whereas in the case of stay the court in which a second action is brought may, in its discretion, stay or suspend that suit.

Thus stay of proceedings and abatement are in some respects similar but they are not identical.[v]

[i] El Paso Natural Gas Co. v. Wood, 1988 Tex. App. LEXIS 109 (Tex. App. Houston 1st Dist. Jan. 27, 1988)

[ii] Williamson v. Tucker, 615 S.W.2d 881 (Tex. Civ. App. Dallas 1981)

[iii] Powell v. American Export Lines, Inc., 146 F. Supp. 417 (D.N.Y. 1956)

[iv] Simmons v. Superior Court of Los Angeles County, 96 Cal. App. 2d 119 (Cal. App. 1950)

[v] Evans v. Evans, 186 S.W.2d 277 (Tex. Civ. App. 1945)


Inside Distinction Between Abatement and Stay