Sheppard v. Coopers' Inc.

Defendant moves to dismiss the complaint pursuant to rule 107 of the Rules of Civil Practice on the following grounds: (a) another action pending, (b) res judicata and (c) Statute of Limitations.

The first two grounds, representing alternative views of the dismissal of a prior action from which an appeal has been taken, need not detain us. Whether that action be deemed as still continuing in view of the pendency of the appeal or as finally determined until reversed on appeal, cannot possibly affect plaintiff’s right to maintain the present action. In the former action plaintiff served a…