Peterson v. City of Butte
Montana Supreme Court
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Action by John Peterson against tbe city of Butte. From a judgment rendered against him on the pleadings, plaintiff appeals. The plea of a former action pending will not be sustained where it appears that the prior action has been dismissed.
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Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Action by John Peterson against tbe city of Butte. From a judgment rendered against him on the pleadings, plaintiff appeals. The plea of a former action pending will not be sustained where it appears that the prior action has been dismissed. The courts are unanimous in holding that where the dismissal takes place before the commencement of the second action, the plea of former action pending cannot be sustained. (1 Cyc. 24, and cases cited; 1 Ency. of PI. & Pr. 755, and cases cited.) And by the great weight of authority…
1Opinion
On Motion for Rehearing.
Judgment on Merits — When Error. 3. Held, that while it was not error to grant a motion for judgment on the pleadings under the circumstances referred to in paragraph 1, supra, the court did err in entering judgment on the merits, whereas it should have directed a dismissal of the action, thus enabling plaintiff to further prosecute his rights in the premises. MR. CHIEF JUSTICE BBANTLY
delivered the opinion of ■the conrt.
The judgment of the district court recites on its face that it was rendered on the merits. Counsel for plaintiff have filed a petition for rehearing,…
2Cases cited4 opinions
- Dunseth v. Butte Electric Railway Co.Montana Supreme Court · 1910
- Glass v. Basin & Bay State Mining Co.Montana Supreme Court · 1907
- Glass v. Basin & Bay State Mining Co.Montana Supreme Court · 1906
- Wilson v. NorrisMontana Supreme Court · 1911