Summary
stating that the defense must be raised by a `plea in abatement,' the procedural predecessor of the motion to dismiss
Summary of this case from Regions Bank v. ReedOpinion
8 Div. 388.
September 24, 1970.
Appeal from the Circuit Court, in Equity, Jackson County, W. J. Haralson, J.
Corretti, Newsom, Rogers May, Birmingham, Harold T. Foster, Scottsboro, and William E. Garner, Ozark, for appellants.
Joseph A. Lee, Scottsboro, for appellee City of Scottsboro.
In order to abate a subsequent action on the basis of the pendency of a prior action, the requirements for sustaining the plea, are that the two actions are pending in Courts of this State at the same time for the same cause, and against the same party, and seek the same relief. Code of Alabama, 1940 (Recomp. 1958) Title 7, Section 146 (Equity Rule 108; Corpus Juris Secundum, Abatement and Revival, § 49. It must be proved in order to sustain a plea in abatement based upon the pendency of a prior action, that the relief sought in both actions is the same in all material respects. Corpus Juris Secundum, Abatement and Revival, § 43; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174.
Dawson, McGinty Livingston, Scottsboro, for appellee James L. Steenhuis, Jr.
A plea in abatement that another action for the same cause against the same parties is good if the former action is pending at the time of the filing of the plea in abatement. Ford v. Bowen, 243 Ala. 334, 9 So.2d 906; Ala. Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412. If a second suit is instituted, involving the same parties in the same cause of action, a plea in abatement pointing out the pendency of the former action is good, even though the former action was terminated after the plea in abatement was filed. Ford v. Bowen, supra; Ala. Power Co. v. City of Scottsboro, supra. The first Court seized of the issues involved, hereby identical, whether by action for declaration, or other judgment, must be permitted to retain jurisdiction of the case. Auto Mutual Ind. Co. v. Moore, 235 Ala. 426, 179 So. 368; Foreman v. Smith, 272 Ala. 624, 133 So.2d 497. Proceedings for declaratory judgment must be filed in the Circuit Court, and it is immaterial whether such proceedings are instituted in equity or law so long as constitutional rights are preserved. Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 235. The modern view is that declaratory judgment proceedings are neither legal nor equitable, but sui generis. 22 Am.Jur.2d p. 837.
This is an appeal from a decree of the Circuit Court of Jackson County, in Equity, sustaining pleas in abatement and dismissing the bill.
On August 26, 1968, the City of Scottsboro adopted its ordinance No. 76, which changed the zoning of certain described land within the City of Scottsboro from AG-2 (Agricultural) to B-3 (Business).
The appellants in this case, on October 31, 1968, filed a petition for declaratory judgment on the law side of the Circuit Court of Jackson County against the City of Scottsboro, James L. Steenhuis, Jr., the owner of the land affected by the rezoning, and two other individuals and a corporation which had collateral interests in the property.
The plaintiffs in the suit at law averred that they owned and lived on property adjacent to or in the immediate vicinity of the rezoned property. They averred that said ordinance No. 76 was invalid on several grounds and prayed that the court render a declaratory judgment declaring that said ordinance is null, void and of no force and effect.
On September 2, 1969, the same individuals who were plaintiffs in the suit at law filed a petition for a declaratory judgment on the equity side of the Circuit Court of Jackson County against the City of Scottsboro, Alabama, and James L. Steenhuis, Jr. The petition, like that filed on the law side, alleged the enactment of ordinance No. 76 by the City of Scottsboro, alleged the invalidity of that ordinance and the interests of the complainants in having the ordinance declared invalid and in the other relief for which complainants prayed. In pertinent part the bill for declaratory judgment filed on the equity side prayed: That ordinance No. 76 be declared null, void and unconstitutional; that the City of Scottsboro be required to show on its maps that the land involved in the litigation was not a B-3 business district; that the City of Scottsboro be enjoined from issuing a building permit to the respondent Steenhuis for improvements of a business nature on the subject property; that the City of Scottsboro be permanently enjoined from allowing the development of the subject property for the uses permitted under ordinance No. 76.
Both respondents filed pleas in abatement to the petition for declaratory judgment filed on the equity side, averring pendency of the petition for declaratory judgment previously filed on the law side involving substantially the same parties and the same subject matter.
As heretofore shown, those pleas were sustained and the petition dismissed. Hence this appeal by the complainants below.
Section 146, Title 7, Code 1940, reads:
"No suitor is entitled to prosecute two actions in the courts of this state at the same time, for the same cause of action and against the same party, and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously; and the pendency of the former is a good defense to the latter, if commenced at different times."
The pendency of a former suit for the same cause of action and against the same party can be availed of as a defense only by plea in abatement. A. B. C. Supermarket, Inc., v. American Employers Ins. Co., 28. 3 Ala. 13, 214 So.2d 291; Holley v. Younge, 27 Ala. 203; Herrington v. City of Eufaula, 36 Ala. App. 348, 55 So.2d 758.
We see no reason why a determination of the validity of ordinance No. 76 in the first suit, that filed on the law side, will not settle all questions between the parties. If the ordinance is declared to be invalid, no injunctive relief is needed, for the subject property would then revert to its former status, which does not authorize the uses permitted by ordinance No. 76. Should unauthorized use then be attempted, adequate remedy would be readily available. We cannot anticipate that the City of Scottsboro would be a party to an unauthorized or unlawful use. The fact that a new ordinance was adopted to authorize a new and different use, rather than to permit such use without official action, shows respect rather than disregard for existing ordinances. By the same reasoning, we cannot assume that the City of Scottsboro will not revise its maps to show the correct zoning status of the subject property if ordinance No. 76 is declared invalid.
If said ordinance No. 76 is declared valid in the first suit, then the complainants in the second suit would not be entitled to any of the supplementary relief for which they pray.
We are of the opinion that the trial court correctly sustained the pleas in abatement and dismissed the petition or bill for declaratory judgment filed on the equity side.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur.