Plaintiffs began their action in the conrt below to contest the validity of the will of James A. Graft. After the issues were made up, the plaintiffs by leave filed a supplemental petition, alleging a contract of settlement according to the terms of which they were to receive from the contestees the sum of $1000. Upon receipt of said sum, it is averred that contestants were to consent to a verdict sustaining the will. It is then averred that eon-testees failed and refused to pay the money, and judgment for said sum is asked.
When thé case came on for trial defendants moved the court to require plaintiffs to elect whether they would proceed upon the original petition, or upon the supplemental petition. Over the objection of defendants this motion was sustained, and thereupon-defendants elected to try the issues made by the supplemental petition and answer thereto, and the original petition was by order of court dismissed. To all of which plaintiffs at the time excepted.
The claim of the plaintiffs in error is that they had the right in the court below “to first try the question on the supplemental petition, and thereafter, the right to try the question on the original petition if they failed to obtain relief on the suplemental petition.”
The question thus raised is not free from difficulty. The authorities to which we are referred do not decide the precise question here presented. It seems that the matters set up in the supplemental petition could have been made the subject of an independent action if the pleader had so chosen. The course pursued, however, seems more in accord with our practice and with the spirit of the code which discourages multiplicity of actions.
If the supplemental matter had been made the basis for a new action, we can not see that the trial of one would necessarily require the dismissal of the other. On the contrary, we are of the opinion that both actions could well remain on the docket, with the right to relief in one only. At plaintiff’s election, the last ease could and ought to be tried first. If the relief therein sought is obtained, the other case is no longer maintain*361able. If, however, it is denied, the first case involving the validity of the will can proceed to final determination.
This hypothetical case, it seems to us, clarifies the situation, and if correctly reasoned leaves little doubt about the question under consideration. Plaintiffs should not be penalized for uniting the different grounds in one proceeding. They should be and are entitled to at least as much choice of procedure in the consolidated action as they would have were two actions pending.
From these considerations we have reached the conclusion that it was error to dismiss the original petition, and that having failed to get relief on the supplemental petition the plaintiffs have the right to try the issue as first made up.
There are no other errors.
Judgment reversed and cause remanded for reinstatement on the docket of the court of common pleas.
Jones, O. B., J., concurs.