ON petition Eor rehearing.
Potter, Justice.Plaintiff in error has filed a petition for rehearing. The chief contention now is that as the proceedings in error for the review of the judgment in the suit wherein the undertaking sued on was given were not instituted until after the commencement of this action on the undertaking, a right of action existed when suit was commenced and, instead of dismissing the action, the court should merely have suspended further proceedings until the determination of the error proceedings.
We need not consider whether the court might in its discretion have ordered a continuance or a suspension of proceedings pending- the appeal, since no such application was made, and the question, therefore, is whether a dismissal was proper. Nor need we consider whether a defense either in abatement or bar of the action arising after commencement of the suit and before answer should be per-*150nutted to be interposed except on terms as to costs, although it would seem that as a supplemental answer under the code is intended as a medium for alleging facts occurring subsequent to the filing of the former answer (R. S., Sec. 3593), it would be proper to set up in the original answer defensive facts theretofore arising, though after the commencement of suit. (Carpenter v. Bell, 19 Abb. Pr., 258.) But the right to file the plea demurred was not assailed; the issue joined upon it was whether it stated facts sufficient to abate the action; and it would clearly have been the duty of the court to permit the assertion of the defense even though set up by supplemental answer, although in such case terms might have been imposed..
Counsel refer to cases where it has been held in suits brought upon a judgment that, pending an appeal from the judgment, the court has power to continue or suspend until a determination of the appeal, in order that injustice to a defendant may be prevented. In such cases the right of action is held to exist not only at the commencement of the suit, but at the time of the continuance or suspension; and the continuance is merely' to protect the defendant from a judgment that might be obtained if the cause should be permitted to proceed.
That is not the situation here. The suit is not brought upon the judgment, but upon an undertaking, according to the terms whereof no liability^ would occur until a final decision that the injunction ought not to have been granted. Pending- the appeal, the judgment of the District Court was not such a final decision, and hence the liability had not been determined.
We 'do not hold that, in the absence of appellate proceedings from a final judgment in the District Court that an injunction was wrongfully granted, suit may not be instituted upon the injunction undertaking at any time after such judgment; nor do we hold that the injunction defendant must wait until the expiration of the period allowed for commencing- appellate proceedings to commence his action *151upon the undertaking. We do not doubt that if such suit is brought at any time after final judgment in the cause in the District Court, although within the period allowed for an appeal, it may he maintained, provided nó appeal is taken. In such case the judgment in the District Court will amount to a final decision authorizing the recovery of damages on the bond for the wrongful injunction.
But the effect of a pending appeal is to destroy the operation of the judgment appealed from as a final determination that the injunction ought not to have been granted; and its effect is the same whether taken before or after the institution of suit upon the undertaking. Pending the appeal the party seeking to recover upon the undertaking will be unable to establish the necessary averments of his petition constituting- his cause of action.
Whether the plaintiff had an existing cause of action when the action was commenced or not, he had none when it appeared by the pleading of the defendants that timely proceedings had been instituted and were pending and undetermined in the appellate court for a review of the judgment dissolving the injunction; although his cause of action might accrue in the future. The effect then was the same as though the action had been prematurely begun. Having no right to then maintain the action, it was clearly a proper procedure to abate it.
We think it immaterial whether the plaintiff had an existing cause of action when the suit was commenced, and the appeal operated merely to prevent the further maintenance of the suit, or whether such appeal is to be regarded as showing that there had been no right of action, and hence a premature commencement of the suit. In either case a dismissal would be proper.
A suit prematurely commenced is subject to dismissal, (ló Ency. PI. & Pr., 875.) And it is generally held that such objection should be taken by plea or answer in abatement. (16 Ency. PI. & Pr., 879 ; 1 Cyc., 745.) At common law a defense arising after jilea is required to he set up by *152plea puis darrein continuance, but where it arises after the commencement of the suit and before plea, it must be pleaded to the further maintenance of the suit. (17 Ency. Pl. Sc Pr., 265; Chicago v. Babcock, 143 Ill., 358; Canfield v. Sch. Dist., 19 Conn., 528; Kimball v. Wilson, 3 N. EL, 96 ; Carpenter v. Bell, 19 Abb. Pr., 258.) And such pleas may be interposed whether for matters in bar or abatement of the suit. And where the facts are sufficient to abate the suit a dismissal results.
The supplemental answer of the code takes the place of the plea puis darrein continuance, although it is not governed by some of its common law effects. And the answer in the case at bar is in the nature of the common law plea to the further maintenance of the suit, on the theory that there was a right of action at the commencement.
Whether, therefore, the suit is to be regarded as prematurely begun, or as one where further maintenance is prevented b) reason of the facts alleged in the answer, such facts being ’admitted, a dismissal was proper. The judgment will not, of course, operate as a bar against a future action upon the undertaking, should the judgment in the injunction suit he affirmed in the appellate court.
The defendant would he entitled, we think, to recover only such costs as accrued after his plea, but as the effect of the judgment is to give him onfy such costs, it not appearing that there could have been any costs on his behalf prior to the plea, there is no reason for disturbing the judgment on that ground.
• AYith reference to the main question discussed in the former opinion, another case has come to our attention in line with our views. In Peck v. Hotchkiss, 52 How. Pr., 226, an attachment suit had been dismissed in the court wherein the attachment had issued, but a pending appeal therefrom was set up as a defense in a suit brought for the alleged wrongful attachment. It was held that the plaintiff’s cause of action would not become complete until final judgment in his favor in the attachment suit, and that with *153an appeal pending the judgment of dismissal cannot be considered final; and judgment was rendered for defendant upon a demurrer to the answer setting up the appellate proceedings. Rehearing denied.
Beard, J., concurs.