¶1This case is before the court on a motion to strike off a counterclaim for the reason that the matters alleged therein as a basis for recovery are the subject of another suit still pending and undisposed of in this court.
¶2That the merits of a case may be pending before the court in another proceeding is no bar to an action. It is only when a matter has been decided that further proceedings on duplicate actions are barred.
¶3*46It is also contended that D. C. Randall was not the operator of the automobile at the time of the alleged collision which gave rise to these proceedings. That may or may not be a matter which concludes the right of counterclaim but it will depend upon the evidence and therefore cannot be disposed of preliminarily.
¶4And now, to wit, March 13, 1945, the rule to show cause, on the motion to strike off counterclaim, is discharged.