delivered the opinion of the court:
It is urged that the plea herein does not fully set out the facts relied upon by the defendants. We have carefully examined the averments of the plea and consider this contention without merit.
It is further objected that0the court below did not follow the proper practice in considering and determining the sufficiency of the plea and in hearing evidence in support of its averments, instead of referring the cause to the master. As this question was not raised in the lower court it will not be considered here.
The general rule is that the pendency of a former suit in the same jurisdiction, in the same or in another court of equity, between the same parties, for the same cause of action and relief, may be pleaded in abatement of the second suit, 1 Ency. of Pl. & Pr. 752; 1 Cyc. 21; Story’s Eq. Pl. sec. 736; 1 Daniell’s Ch. p. 656; American Bible Society v. Hague, 4 Edw. Ch. (N. Y.) 117.
The purpose of the original bill, filed in the case of Stahl v. Stahl in the superior court, was to obtain for each of the children of Fredericka L. Stahl the one-seventh part of the real estate in question, to have an accounting of the rents and profits thereof since the same was conveyed by Fredericka L. Stahl, to have a receiver appointed, and to obtain general relief. That bill did not specifically pray partition, although it appears therefrom that each of said children is the equitable owner of the undivided one-seventh of said real estate. The present bill in the circuit court seeks the same end, as it is an ordinary bill for partition and 'accounting. All the parties who were necessary parties to a suit for the partition of this real estate were parties to the first bill at the time it was filed, and in the opinion of this court in Stahl v. Stahl, (ante, p. 188,) the method which may be followed in the first suit to obtain partition is pointed out.
The parties in the second suit are not identical with those in the first in this: Certain persons who have become interested in the real estate since the filing of the bill in the superior court are made parties to the bill filed in the circuit court. Under these circumstances it is not' necessary that the parties to the two suits should be precisely the same. There is here a substantial identity of parties, which is all that is necessary, x Ency. of PI. & Pr. 757; Story’s Eq. Pr. sec. 738.
The second bill did not aver anything or seek any relief in regard to the conveyances from Eredericka L. Stahl to Frank A. Stahl, and from Frank A. Stahl to John Stahl, but at the time the bill was filed the effect of those deeds had already been fully determined by this court and the controversy in reference thereto had been finally ended and determined. This difference between the two bills was therefore an immaterial one.
We deem it apparent that the relief sought in the second suit may be obtained in the first, and that relief so sought in the second suit is, for all practical purposes, the same as that sought in the first, and that the subject matter of the two suits is the same, being the real estate described in the respective bills and the rights of the children of Eredericka L. Stahl therein and in the rents thereof.
The superior court and the circuit court of Cook county are courts in the same jurisdiction, exercising equitable powers, and have concurrent jurisdiction of the subject matter of this controversy, and the superior court having first obtained jurisdiction of the suit, will retain the same to the exclusion of the circuit court. Plume & Atwood Manf. Co. v. Caldwell, 136 Ill. 163; Howell v. Moores, 127 id. 67; Dunham v. Dunham, 162 id. 589.
The decree of the circuit court will be affirmed.
Decree affirmed.