Opinion
(Filed 2 April, 1901.)
ANOTHER ACTION PENDING — Dismissal and Nonsuit — Federal Courts — The Code, Secs. 142, 166 — Demurrer.
One taking a nonsuit in a Federal Court is entitled to bring a new action in the State Court within one year thereafter.
ACTION by D. E. Fleming against the Southern Railway Company, heard by Judge H. R. Bryan, at November Term, 1900, of IREDELL. From a judgment for the plaintiff, the defendant appealed.
Long Nicholson, for the plaintiff.
A. B. Andrews, Jr., for the defendant.
The complaint, after setting out the cause of action, avers that a previous action, which had been brought by plaintiff against defendant demanding $20,000 damages for the same cause of action, had been removed into the Federal Court, and that at the following term of that Court "the plaintiff, with consent of defendant's attorney, agreed to take a nonsuit in the Federal Court provided it should simply terminate the action for the $20,000 claim, and that plaintiff might then bring action in the State Court anew for $2,000. Hence this action."
The demurrer admits this averment. It was therefore properly overruled. Indeed, whether the nonsuit was taken (81) with or without consent of the defendant, the plaintiff had a right to bring this new action within one year thereafter by the express terms of our statute. Clark's Code (3 Ed.), secs. 166, 142, and cases there cited.
We are referred by defendant's counsel to R. R. v. Fulton, 59 Ohio St. 575, which holds that a nonsuited action can be reinstated in the Federal Court against consent of defendant. Whatever be the practice in Ohio such is not the statute or practice in this State, and the Federal Courts, in matters of practice, follow the practice of the courts of the States in which they are held. Even if the contrary were true, the action for $20,000 had not been reinstated when the summons in this action for $2,000 was issued, and the point attempted to be raised by the demurrer that another action for the same cause was pending has nothing to rest upon.
Affirmed.