The Opinion of the Court was delivered by
Treat, J.*This action was commenced in the Cook County Court, by Rose & Rattle against Branigan. The declaration was in assumpsit. The defendant filed a plea in abatement, averring in substance the pendency in the same Court of a proceeding in attachment on the same cause of action, commenced prior to the institution of this suit. The Court sustained á demurrer to the plea, but rendered no formal judgment of respondeat ouster. The defendant failing to answer further to the action, the plaintiff’s damages were assessed by the. Court, by the agreement of the parties. Judgment was rendered on the assessment. The defendant prayed an appeal to this Court, which was granted on the condition that he should enter into bond within ten days. Before the expiration of the ten days, and before the execution of the bond, the plaintiff caused an execution to issue on the judgment. The defendant then applied to the Judge at his chambers for an order to stay proceedings on the execution until he could move the Court to set it aside, which was denied.
The chief point in the case is, as_to the validity of the plea in abatement. The principle on which pleas of this character are sustained is, that the law, which abhors a multiplicity of suits, will not permit a debtor to be harrassed and oppressed by two actions to recover the same demand, where the creditor can obtain a complete remedy by one of them. If the same remedy is furnished by the first action, the subsequent one is wholly unnecessary, and is, therefore, regarded as vexatious, and will be abated. But if the remedy by the former action may be partial or ineffectual, the plea in abatement to the latter cannot prevail. Bacon’s Abr. “Abatement,” M; Gould’s Pl. 283. On this principle, it is clear that the pendency of a proceeding in attachment ought not of itself to abate a subsequent suit in personam. Under our statute, an attachment is generally a mere proceeding in rem. The judgment is in rem., and not in personam. It can only be satisfied out of the estate attached. No action can be maintained on the judgment, the record not affording prima fade evidence of indebtedness. The plaintiff’s remedy may, therefore, be but partial and incomplete. If no estate of the debtor is attached, it fails altogether. It is true' that this proceeding may become personal by an appearance, but in pleading the pendency of an attachment in abatement, the plea ought to show by a proper averment that the defendant was personally a party to the proceeding. In the opinion of the Court the plea in question is bad. This view of the case is sustained by the authorities. In Morton v. Webb, 7 Verm. 123, it was decided that the pendency of a trustee .action could not be pleaded in abatement of a subsequent suit, in the common law form, for the same cause of action. That case is identical in principle with the present. In Delahay v. Clement, 3 Scam. 201, this Court held that a proceeding under the statute to enforce a mechanic’s lien .could not abate a subsequent action for the same demand, on the ground that the former proceeding was in rem, and might not, therefore, afford a complete remedy. See, also, the case of Winthrop v. Carleton, 8 Mass. 456. We have been referred to the cases of Embree Collins v. Hanna, 5 Johns. 101, and Scott v. Coleman, 5 Littell, 349, as establishing a different doctrine, but on examination they fail to sustain the position. In the first case, Hanna was indebted to Embree & Collins, and Bach & Puffer, creditors of the latter, attached the debt in the hands of the former. To a subsequent action brought by Embree & Collins to recover the same debt, Hanna was permitted to plead in abatement the pendency of the attachment, for the reason that the attachmént of the debt in the hands of Hanna fixed it there in favor of the attaching creditors, and that he could not afterwards lawfully pay it to the plaintiffs in the second action. In the latter case, the Court simply decided that the payment of a judgment rendered in Pennsylvania, in a foreign attachment against the defendants, was a good defence to an action brought in Kentucky on the same cause of action.
It is assigned for error, that the judgment in sustaining the the demurrer to the plea in abatement, was in chief, and not respondeat ouster. Technically the latter judgment should have been entered of record, but in point of fact no judgment, interlocutory or final, was then rendered. This omission was not to the prejudice of the defendant. He was not thereby precluded from answering over to the declaration, but had an undoubted right so to do. On his declining to do it, the Court proceeded properly to dispose of the case. Bradshaw v. Morehouse, 1 Gilman, 395, is an authority in point.
The refusal of the Judge to stay proceedings in the execution is also assigned for error. That application was addressed to the sound discretion of the Judge, and his decision thereon cannot be assigned for error. As well might the- refusal of a Judge to allow an injunction, or. grant a writ habeas corpus, be assigned for error. The discretion, however, was properly exercised. The plaintiffs had the unquestioned right to an execution on the adjournment of the Court. The mere order granting the appeal did not divest that right. The judgment became operative from the last day of the term, and continued so until the appeal was perfected by the ftling of the bond. The allowance of the appeal was conditional, and did not operate as a supersedeas on the proceedings until there was a compliance with the condition.
The judgment of the Cook County Court is affirmed with costs.
Judgment affirmed.
Justices Lockwood and Young did not sit in this case.