Thomsen v. Thomsen , 118 Or. 614 ( 1926 )

Motion to dismiss appeal overruled April 27, 1926. ON MOTION TO DISMISS APPEAL. (245 P. 502.) The plaintiff, appellant here, is suing the defendant for a divorce. The defendant answered, denying the allegations of plaintiff's complaint, and filed a cross-complaint asking for a divorce from the plaintiff. At the hearing, the court handed down a decree, dismissing plaintiff's complaint and defendant's cross-complaint, but containing the following order:

"That the complaint of the plaintiff be, and the same is hereby dismissed — and that the plaintiff be and he is hereby ordered and required to pay into court immediately the sum of $300 as additional attorneys fees and suit money, and for defendant's costs and disbursements herein."

The plaintiff appealed from this order, or that part of it above quoted; and in addition to the ordinary bond, gave a stay bond conditioned to pay all damages, costs and disbursements that might be awarded against him on the appeal.

The defendant now comes into court and moves to dismiss stating as a ground therefor that, since this appeal was perfected and pending in the Supreme Court, plaintiff had commenced another suit for divorce in the Circuit Court. This motion suggests a peculiar condition of affairs, but we are of the opinion that the bringing of another suit does not amount to a waiver of the plaintiff's original suit, and certainly does not amount to a waiver of his right to contest the order of the court requiring him to pay his wife's costs and attorneys' fees.

The same proposition arose in Randolph v. Brunswick Birmingham R.R. Co., 120 Ga. 969, 970 (48 S.E. 396). The statement in that case is as follows:

"The court granted a nonsuit. The plaintiff sued out a writ of error. On the call of the case here, the defendant presented a certificate from the clerk of the superior court, showing that after the bill of exceptions had been transmitted to the Supreme Court, the plaintiff filed another suit for identically the same cause of action; and thereupon the defendant moved to dismiss the writ of error, on the ground that the institution of the second suit was an acceptance and ratification of the judgment granting a nonsuit. Courts do not settle moot questions or deal with fictitious litigation; neither will they proceed to judgment where it is shown that the parties have settled their controversy, or that the judgment has been satisfied. In such case the writ of error will be dismissed in the appellate court. If on an application for injunction it appears that the act sought to be enjoined has been fully completed, a like dismissal will result. [Citing a number of cases.] But all these decisions relate to the conduct of the parties, or the condition of the subject matter, in the suit then pending in the Supreme Court. None of them rule that an action rightly brought and then undisposed of shall be dismissed because of the conduct of one of the parties in another and independent action. If the plaintiff had consented to the nonsuit (Zorn v. Lamar, 71 Ga. 81), or, after a judgment of involuntary nonsuit, had brought a new action and thereby yielded to the judgment before presenting a bill of exceptions, a different question might have been presented. But here she continued and preserved the original action by filing a bill of exceptions. The pendency of this former suit may have been good ground for abating the second, but the pendency of the second cannot be used to abate the first."

This seems to be a reasonable view of the law and we are disposed to accept it as such.

The motion to dismiss will be overruled.

MOTION OVERRULED.