LYKINS v. PIERATT, 311 Ky. 739 (1949)

225 S.W.2d 309

Lykins v. Pieratt et al.

Court of Appeals of Kentucky.
December 16, 1949.

John J. Winn, Judge.

Denn R. Pieratt and others, partners doing business as Pieratt and Crain Company, brought action against Elmer Lykins for damages for alleged breach of a timber contract.

The Circuit Court of Menifee County, John J. Winn, J., rendered judgment for plaintiffs after overruling defendant’s special demurrer alleging that a prior action was pending in the Wolfe Circuit Court between the same parties on the same subject matter, and defendant appealed.

The Court of Appeals, Clay, C., affirmed the judgment, holding that though plaintiffs could have set up their action for damages in

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the Wolfe Circuit Court by way of set-off or counterclaim, they were not required to do so and were at liberty to assert such right in the proper court of their own choosing.

Edward E. Bach for appellant.

Lewis A. White and W.C. Hamilton, Jr. for appellees.

CLAY, COMMISSIONER

Affirming.

This suit was brought in the Menifee Circuit Court by appellees to recover damages for appellant’s alleged breach of a timber contract. The latter filed a special demurrer alleging that a prior action was pending in the Wolfe Circuit Court “between the same parties over the same subject matter.” This demurrer was overruled and the parties went to trial, resulting in a verdict for appellees.

The only question raised on this appeal is whether or not the Menifee Circuit Court properly overruled the special demurrer which constituted a plea in abatement.

Appellant and appellees each had independent causes of action on the contract involved. Neither was a defense to the other. Though the subject matter was the same, the distinct claims did not constitute the “same cause,” the ground upon which the special demurrer is invoked. Civil Code of Practice, section 92, subsection 3.

While appellees could have set up their action for damages in the Wolfe Circuit Court by way of set-off or counterclaim, they were not required to do so. They were at liberty to assert such right in the proper court of their choosing. This question was settled in the recent tort case of Conley v. Marshall et al., 304 Ky. 745, 202 S.W.2d 382, and the same principle applies in a suit on a contract. The lower Court properly overruled the special demurrer.

The judgment is affirmed.

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