Page v. Mitchell

The defendant’s answer sets up the pendency of a former suit between the same parties for the same cause, and also a separate defence upon the merits. The two defences were properly united in the same answer. The plaintiff’s reply admits the-former action, but alleges dismissal, and puts in issue the further allegations in the answer. At the trial the defence upon the merits failed; and as to the plea in abatement, it is found by the court that at the time of the service of the summons in this action a notice of dismissal of the former suit was also served on the defendant, *369and was…