Alpert v. Mercury Pub. Co‪.‬

RUGG, C. J. This is an action of tort. The plaintiff alleges that on December 14, 1926, the defendant published a false and malicious libel concerning him. By writ dated February 10, 1927, the plaintiff brought an action against the defendant for the same cause of action. That action was entered in court, issue was joined, the case marked for trial by the plaintiff and was on the list for trial on December 6, 1927, and the defendant was then prepared for trial. Neither party had claimed trial by jury. The plaintiff thereupon made motion that the cause be tried by jury, alleging that no claim therefor had been made through an oversight or clerical error originating in the office of counsel. That motion was heard and denied. The plaintiff immediately discontinued that action and afterwards on the same day brought the present action, claiming trial by jury, which was entered in court on the first Monday of January, 1928, together with a declaration alleging the same libel as was set out in the earlier action. The defendant duly filed a plea in abatement, setting out in substance that at the time the present action was commenced there was an action pending in the same court for the same cause of action. An order was entered sustaining the plea and dismissing the case. The plaintiff filed a bill of exceptions.