"It is the duty of a court in construing a statute to seek to discover and carry out the evident intention of the Legislature. In C. C. Dist. Transit Co. v. Mueller, supra, [ 213 Ind. 221, at page 534, 12 N.E.2d 244, at page 249], the court set forth with approval this quotation at page 534, 12 N.E.2d 244: `In the search for that intention the court will look to each and every part of the statute; to the circumstances under which it was enacted; to the old law upon the subject, if any; to other statutes upon the same subjects, or relative subjects, whether in force or repealed, to contemporaneous legislative history, and to the evils and mischiefs to be remedied.
State ex rel. Thompson v. Rhoads (1946), 224 Ind. 136, 65 N.E.2d 248. Respondent contends that in Cooper v. Cooper (1933), 213 Ind. 221, 12 N.E.2d 244, this Court held that litigants and attorneys have the duty to take notice of the action of the court in any lawsuit in which they are involved. The principle enunciated in that case was limited by the adoption of the Civil Code of Procedure (1969) providing that the clerk issue notices in cases such as that we have here.
6 It is also generally held that for the purposes of the application to stay the proceedings the second action will be deemed vexatious until the inference is removed by some showing on the part of the plaintiff, but the slightest countervailing evidence is sufficient to overcome the presumption. Cooper v. Cooper, 12 N.E.2d 244; Lake Agricultural Co. v. Brown, 186 Ind. 30, 114 N.E. 755; Hipes v. Griner, 28 Ind. App. 160, 62 N.E. 500. 7 The weight of the authority also is that the mere pecuniary inability of the plaintiff to pay the costs of the first suit is not ground for a refusal to say the subsequent suit by plaintiff on the same cause of action.
And since the mere staying of the second proceeding leaves it still pending and therefore may not accomplish full justice, as it did not in this instance, the court has the power in appropriate cases to dismiss the second proceeding altogether. Weston v. Withers, 2 T.R. 511. Pinchard v. Roe, 4 East, 585. Hoare v. Dickson, 7 C.B. 164. Dunn v. Harris, 214 Ala. 120. Cooper v. Cooper, 213 Ind. 221. Kerr v. Davis, 7 Paige Ch. 53. Barton v. Speis, 73 N.Y. 133. Robbins v. Rogers, 247 App. Div. (N.Y.) 603.
Under these circumstances, we must reverse. INA argues that the principle enunciated in Cooper v. Cooper, (1933) 213 Ind. 221, 12 N.E.2d 244, must be adhered to that once counsel has appeared for his client, he must keep himself apprised of all aspects of the case. The Cooper case was limited by our supreme court in State ex rel. Sargent Lundy v. Vigo Superior Court, (1973) 260 Ind. 472, 296 N.E.2d 785.
The attorney is primarily responsible for the conduct of his client's action. Cooper v. Cooper (1938), 213 Ind. 221, 12 N.E.2d 244, 246. In aid of the attorney's duty to monitor his client's action, TR. 72(D) provides that the clerk shall serve notice of all orders and judgments by mailing copies to the attorneys of record.