Definition
A Law French phrase meaning "another action pending." In pleading, auter action pendant names the plea by which a defendant asserts that the plaintiff has already commenced another action for the same demand in a court of competent jurisdiction. If the plea is sustained, it abates — that is, terminates without a final judgment on the merits — the second action in which the plea is raised. The doctrine reflects the principle that a plaintiff should not be permitted to harass a defendant with simultaneous proceedings for the same cause, and that courts have an interest in preventing duplicative litigation and inconsistent judgments.
The plea is a species of plea in abatement, not a plea in bar. This distinction matters: a successful plea in abatement does not extinguish the plaintiff's claim permanently. It merely suspends or terminates the current action, leaving the plaintiff free to pursue the original proceeding or, once that proceeding is resolved, to bring a fresh action.
Common Confusion
AUTER ACTION PENDANT vs. RES JUDICATA: These are frequently conflated but operate at opposite ends of the litigation timeline. Auter action pendant addresses a prior action that is still pending — it looks forward, preventing simultaneous suits. Res judicata addresses a prior action that has already been finally decided — it looks backward, preventing relitigation of settled matters. A defendant who confuses the two risks raising the wrong plea at the wrong stage.
AUTER ACTION PENDANT vs. LIS PENDENS: Lis pendens (literally "suit pending") is the broader Latin concept and is used both as a procedural doctrine and as the name of a recorded notice that a pending action affects title to specific real property. Auter action pendant is the specific pleading vehicle — the formal plea interposed in a second action. In modern practice, lis pendens has almost entirely displaced the Law French terminology, though the underlying plea survives in substance.
Why It Matters in Research
Researchers will encounter this term almost exclusively in historical sources — English common law pleading manuals, early American treatises, and nineteenth-century case reporters. It rarely appears in modern American practice under this name; contemporary courts and procedural rules address the same problem through doctrines of abatement, dismissal for prior action pending, or, in federal practice, principles of comity and abstention.
Several traps await researchers in historical sources. First, the plea's effectiveness depended heavily on identity of parties, identity of cause of action, and the competence of the court in which the first action was filed. Bouvier's entries make clear that the plea did not automatically succeed across different court systems: a suit at law was not a bar to a suit in equity for the same demand, and vice versa, unless the courts shared concurrent jurisdiction or a party sought equitable relief to restrain the parallel proceeding. This jurisdictional limitation was significant in the era of separate law and equity courts and becomes invisible once those courts merged.
Second, the plea belonged to a formal pleading system — common law special pleading — that no longer exists in most jurisdictions. Understanding how the plea functioned requires familiarity with the structure of pleas in abatement generally and with the procedural consequences of abatement (no bar to future action) versus bar (final extinction of the claim).
Third, researchers tracing the evolution of this doctrine into modern practice should look to rules governing dismissal without prejudice, compulsory joinder, and the first-filed rule in federal courts, none of which use the term auter action pendant but all of which address its underlying concerns.
Historical Dictionary Support
The historical dictionaries are in close agreement on the core meaning. Black's, Burrill's, and Rapalje & Lawrence all define the term consistently as "another action pending" and identify it as a plea in abatement. Black's and Burrill's both cite Chitty on Pleading (1 Chit. Pl. 454) as authority; Burrill adds a reference to Fleta, the thirteenth-century English legal treatise, signaling the doctrine's deep common law roots.
Rapalje & Lawrence adds the most substantive procedural detail, noting that the plea is available "either at law or in equity" and that if sustained it abates the action in which it is interposed. The Bouvier's excerpt, though fragmentary in the source material, confirms the jurisdictional complexity: parallel suits in law and equity did not automatically trigger the plea, and courts of equity could enjoin a plaintiff from proceeding in a duplicative action at law. This equity dimension is absent from the other dictionary entries and represents the most practically significant nuance in the historical record.
What the historical dictionaries largely omit is any treatment of how the plea was defeated — by showing lack of identity of parties, lack of identity of causes of action, or that the first court lacked jurisdiction. Researchers needing that procedural depth should consult Chitty's Pleading directly.
Jurisdictional Note
In American jurisdictions that merged law and equity courts following the Field Code (1848) and later the Federal Rules of Civil Procedure (1938), the formal plea of auter action pendant disappeared as a distinct procedural vehicle. Its functional successor varies by jurisdiction: some states codify dismissal for prior action pending as a ground for abatement by motion; others treat it under general principles of comity or judicial discretion. Federal courts apply the first-filed rule, which is discretionary rather than mandatory.