Particular Grounds for Abatement

Abatement is the premature ending of a suit before final adjudication.  Abatement of a suit can happen under various grounds.  A defendant can plead to abate the suit by claiming one of the grounds of abatement.  When a suit is abated it may be abated temporarily, or permanently.  Ultimate goal of a court through abatement is to prevent unnecessary wastage of time and expense of the court.  Some of the various grounds of abatement are:

  • Death of a party.

It is a common law rule that all suits and actions must be prosecuted by and against living parties.  One of the parties’ death can result in abatement of a suit, if there is no right of surviving interest on the heirs of the dead over the issue in dispute.  However, a suit can be revived if the heirs have a right of action over the dispute.

  • On premature commencement of action.

An action cannot be initiated in a court without the cause of action of the suit starting to run.  When a suit is filed prematurely, the defendant to the suit can plead pre-maturity of the suit as a defense in the answer.  In the absence of such a plea by the defendant the court will consider the defense as waived.  However, when a case is against a public official in his/her official capacity the case will not be abated on death or retirement.  It will continue against the successors to the office.

  • When another case is pending on the same issue between the same parties.

A plaintiff is not authorized to ignore a previous action and bring a second independent action on the same facts while the original action is pending.  A second action based on the same cause is generally abated.  Following are the elements required for abating a second suit on the same facts

  • where there is a previous action pending in a court of competent jurisdiction;
  • within the same state or jurisdictional territory;

However, the second suit can be an effective one, if the first action was discontinued without proper adjudication and if the discontinuation was properly notified.

  • When the interest of the person in the case has changed or is transferred to another person.

Common law rule is that when the interest of a person in the subject matter in dispute is changed or transferred to another person the suit abates.  However, now-a-days in many of the states rules have changed.  Hence, when there is a transfer of interest while a suit is pending, the action does not abate.  It may be continued in the name of the original party, for the benefit of the assignee or transferee.  Otherwise, the assignee may be substituted for the original party.  These changes depend on the law of each state.  In Ga. Power Co. v. Hun[1], the power company sought a mandatory injunction to order the property owner to remove light poles.  While the case was pending, the property owner transferred the property to a third party.  The power company did not join the transferee as a party defendant, nor did it seek to substitute the transferee for the property owner.  The property owner contended that he had transferred his interest in the property.  The court found that if a mandatory injunction was granted, the property owner will have to enter the land of another and remove fixtures.  Hence, the court held that the action could not be continued because the power company failed to substitute parties and the action against the property owner was dismissed.

Generally an action does not abate due to the appointment of a receiver for one of the parties when he turns insolvent.

[1] 266 Ga. 331 (Ga. 1996).


Inside Particular Grounds for Abatement