207 P. 71 | Wyo. | 1922
On June 8th, 1921, there was pending in this court a proceeding in error, No. 1027, fully perfected, entitled Mary Barrett, Patrick C. Barrett, and Joseph E. Barrett, plaintiffs in error, v. Tom Whitmore, as administrator of the estate of Mary Barrett, deceased, James Barrett, Union Pacific Coal Company, a corporation, E. E. Peters, and G. C. Gray, defendants in error. The only difference in the titles of this case, No. 1053, and of No. 1027 is that in the latter Patrick C. Barrett and Joseph E. Barrett are co-plaintiffs in error, whereas in No. 1053 they are, instead, made co-defendants in error. On January 8, 1921, there
In the meantime, and on August 29th, 1921, said Tom Whitmore filed herein his plea in abatement, the substance of which is, so far as material here,' that there is another action, namely, No. 1027, pending between the same parties, involving the same issues. Thereupon, on September 27th, 1921, there was filed in this court by the plaintiffs in error, through their attorneys, Kinkead, Ellery & Henderson, a motion to dismiss said cause No. 1027, setting forth among other things, that Mary Barrett at all times was and is the real and only party in interest so far as plaintiffs in error are concerned; that cause No. 1053 was instituted for the
Some contention is made that no authority is shown from Patrick C. Barrett and Joseph E. Barrett for dismissal of cause No. 1027. Attention is called to the fact that Mary Barrett filed in said cause on August 13, 1921, her authority for the appearance of Kinkead, Ellery & Henderson in said causé and in any subsequent proceeding. We can see no force in the contention. The rule is, that except under special circumstances making it inequitable for the co-parties, which circumstances do not appear to exist in this case, one of the parties who desires to dismiss an appeal as to himself may do so/ (4 C. J. 564; Field v. Kenneweg, 218 Ill. 366, 75 N. E. 986; Thorp v. Thorp, 40 Ill. 113.) Again, Patrick C. Barrett and Joseph E. Barrett do not question the authority of the attorneys to dismiss the cause, and we do not think that any other person has the right to do so. So we shall proceed to determine as to whether or not cause No. 1053 should be dismissed od
We are cited to a number of authorities which hold that a second appeal cannot be brought while a valid appeal between the same parties and involving the same subject matter is pending, and wherein the motion to dismiss the second appeal was sustained. The ’ California cases to that effect are based on Hill v. Finnigan, 54 Cal. 311, where the court said that the second appeal was a nullity, “for there was nothing then pending in the district court from which an appeal could be taken.” So in State ex rel. v. King, 6 S. D. 297, 60 N. W. 75, the court said that under such conditions the second appeal was nugatory. “There was nothing for it to act upon — nothing that he could bring to this court by appeal. (Hill v. Finnigan, 54 Cal. 311.) ” So the Iowa Supreme Court in Pilkington v. Potwin, 163 Iowa 86, 144 N. W. 39, following an earlier case as well as State ex rel. v. King, supra, said:
“It is not disputed by appellant that, where a proper notice of appeal has been served and the appeal perfected, the lower court loses jurisdiction and the cause is transferred to this court. It has been held that a subsequent appeal by the same party, while such former appeal is pending, is nugatory. ’ ’
The reasoning in Reichenbach v. Lewis, 5 Wash. 577, 32 Pac. 460, 998, is about the same. The theory, however, upon which such holding appears to be predicated is more plainly stated in Daly v. Kohn, 230 Ill. 436, 83 N. E. 328, where the court said:
“An appeal is a continuation of the same case, and when the case is transferred to an appellate tribunal by appeal, there is no case pending in the trial court upon which a writ of error will operate at the suit of the party prosecuting the appeal until the case gets back into the trial court in some regular way. ’ ’
On the other hand, the Supreme Court of Nebraska, holds that both a proceeding in error as well as ah appeal may be instituted, but that an election upon which the party
“The United States Circuit Courts of Appeals were established to provide, not to prevent, reviews of challenged rulings of the courts below. While the parties in these cases seem to have treated the first writs as though they were abandoned at the time that the second writs were issued, they were not dismissed by order of court, nor was any motion to dismiss them made by either party and before they expired by limitation the transcript and return to each of them was filed. In this state of the case the records in these cases fail to convince that the first writs have ever become ineffective. And to the end that there may be a full and fair review of all the challenged rulings of the court below, let an order be made that the motion to dismiss the second writs is denied. ’5
The reasoning of the California, South Dakota, Iowa and Illinois cases are apparently based on the theory that jurisdiction of the cause having been removed .to the Supreme Court by the first appeal, there is nothing remaining in the lower court; that the judgment, being removed therefrom, it is, so far as that court is concerned, a nullity — not in existence, and hence there is nothing upon which a second appeal or proceeding in error can be based. That same argument was made in the case of Jenny v. Walker, 80 Ohio State 103, 88 N. E. 123, where the court, disapproving of that reasoning as applied to a ease where a proceeding
“The error of such contention or claim is found in the fallacy of the premise upon which it rests, namely; that the appeal cancels and destroys the judgment. The effect of the appeal is not, as assumed by counsel, to vacate and destroy the judgment appealed from, but its only effect is to suspend such judgment, and to stay proceedings to enforce its execution. It does not operate to annul the judgment; or to otherwise impair its vitality and obligation than by merely suspending its enforcement during the pendency of the appeal.”
We held in the recent ease of Finley v. Pew, 205 Pac. 310, that though one of the parties to a case bring the cause here by direct appeal, the other, complaining of the same judgment, may, nevertheless, bring it here by proceedings in error. It is difficult to conceive that if an appeal so completely removes a judgment and the proceedings in connection therewith, that a subsequent proceeding in error cannot operate thereon, how our holding in the foregoing case could be sound. The Illinois Supreme Court in Daley v. Kohn, supra, holds that the two theories do not conflict, but that statement is not convincing to reason. A review in an appellate court is sought from a judgment that has been rendered, and a cause that has been decided. The lower court, upon the institution or perfection of the proceedings for review, may lose control over that judgment and the cause, and may have no further jurisdiction, while such proceeding for review is pending in the appellate court, to do anything in connection therewith, but, nevertheless, the judgment remains, and it retains, though jurisdiction over it is removed to the Supreme Court, at least a potential vitality sufficient to permit such proceedings in error.
Some of the cases cited by counsel can further be understood on account of the fact that the courts, deciding them, hold that dismissal is, generally speaking, equivalent to an affirmance of the judgment. That appears to be the rule in California and Georgia. (Boner v. Bank, 25 Wyo. 260,
A subsequent suit in courts of original jurisdiction may generally be abated on the ground of the pendency of a prior action between the same parties on the same cause. The rule is based on the principle that multiplicity of suits should be avoided and a party should not harass another with unnecessary litigation. (1 C. J. 45.) And this principle applies in appellate proceedings as well as in actions in courts of original jurisdiction. (Elliott, Appellate Procedure, § 528.) The rule at common law was that where a suit was commenced while a prior suit was pending, the pendency of such prior suit was good ground for a plea in abatement, although the prior suit was subsequently dismissed. This is substantially the rule which is sought to be applied in this case, for the effect of a plea in abatement
“It seems to us that to enforce the rigid rule contended for by the counsel in a case like this, when judgment of dismissal has been entered by the court and the defendant’s costs taxed and received by him, is really to sacrifice the substantial rights of parties to a mere technicality. We are not disposed to sanction such a rule of practice. If we could see that the defendant was prejudiced in any substantial right by the course adopted by the plaintiff, the case would be different. As it is, he- has suffered no practical wrong; he has his costs; and we therefore think that the court properly denied the nonsuit for the mere reason that the former action was pending when the present one was commenced.”
And it is now the general rule that where the first suit is dismissed, whether before or after the beginning of the second suit, and at any time before the hearing of the plea of abatement, the latter will fail. (1 R. C. L. 11, 1 C. J. 94.) Some of the courts have expressed themselves cautiously. Thus it was said in Willson v. Milliken, 103 Ky. 105, 44 S. W. 660, 82 A. S. R. 578, 42 L. R. A. 449:
“The. more modern rule seems to be that the objection of a former suit pending is removed by its dismissal or discontinuance, even after plea in abatement in the second suit. * * *. We think this is.a more just and reasonable rule, and so hold to be the law; but we would not be imderstood as holding this to be inflexible and to be applied in all cases. The reason of the rule in the beginning, that a plea of former action pending would abate the second action, is just as good today as when the rule was adopted.*506 i. that vexatious litigation would not be permitted; and if it appears that the second action was brought for the purpose of vexation rather than to seek legal rights, the plea should be sustained. ’ ’
The Supreme Court of Connecticut in the case of Hatch v. Spofford, 22 Conn. 484, 494, speaking of the nature of the rule that a second action should be abated, said in part as follows:
"The rule * * * is not a rule of unbending rigor, nor of universal application, nor a principle of absolute law — it is rather a rule of justice and equity. * i;: *. It is obvious then, a second suit is not, of course, to be abated and dismissed as vexatious, but all the attending circumstances are to be first carefully considered, and the true question will be, what is the aim of the plaintiff? Is it fair and just, or is it oppressive ? * * *. ”
We see no reason, both from the standpoint of applying principles uniformly whenever that can be done, or from the standpoint of justice, why the principles of law applicable to the pendency of another suit in actions in courts of original jurisdiction should not be applicable to proceedings in error. We need not determine anything as to appellate proceedings by direct appeal. But a proceeding in error is in the nature of a new suit. (3 C. J. 304; Levering v. Bank, 87 O. S. 117; 100 N. E. 322; Ann. Cas. 1913 E. p. 917. See Lobell v. Oil Co., 19 Wyo. 170.) We have seen that the principle that a litigant should not be har-rassed by a second or subsequent suit between the same parties, and involving the same subject matter, applies here as well as to actions below. Further, it is evidently the common law rule, above mentioned, first applied to actions in courts of original jurisdiction, that was adopted by courts later in cases of appeal. Again, there is another rule relating to this subject', namely, that the first suit in courts of original jurisdiction is no bar to the commencement of the second suit if the former is ineffective. (1 C. J. 91.) This principle, too, is applied in appellate proceedings as shown by some of the cases cited on this hearing.
The motion of plaintiff in error to be permitted to use in this case the original papers now in this court in connection with cause No. 1027 must be sustained. That was ruled in Boner v. Bank, supra. The plaintiff in error herein asked for certain specified papers and the clerk of the district court certified that these identical papers were in this court. It would subserve no good purpose to simply send these papers back and have them recertified. The clerk certified in connection with case No. 1027 not only the original pápers but the journal entries, required in this case, as well. While counsel probably intended to move that said journal entries as well as the original papers be used in this case, the motion covers only the original papers. Counsel may, if they desire, amend the motion so as to apply to said journal entries, and if so amended, the same will be sustained as so amended.
There are some other points mentioned in the briefs, but these are not controlling on this hearing.
Motion to dismiss overruled.
Motion to use papers sustained.