11 F. 206 | D. Conn. | 1882
This is a demurrer to a, bill in equity. The bill alleges that the plaintiff is the maker of three negotiable promissory notes, payable to the order of and delivered to E. S. Wheeler & Co., who procured the notes to be discounted before maturity by the American National Bank, a Iona fide purchaser.
Divers facts are alleged in the bill, from which it appears that the notes, after they were delivered and a few days after they were discounted, became, as between the maker and the payees, accommodation paper and without consideration. The notes were not paid at maturity. The plaintiff informed the bank of the facts, offered to give it a bond of indemnity against loss and expenses, and requested it to sue E. S. Wheeler & Co., but they, having given the bank the certified checks of a third person to an amount larger than the notes, as collateral security, were permitted by the bank to bring a suit in its name against the plaintiff before a state court in St. Louis. The bank obtained judgment against the plaintiff, from which he appealed to the St. Louis court of appeals, where the cause is still pending.
An injunction is not asked in terms against the prosecution of the suit, but it is true that the circuit court is not authorized so to control a suit in the state court by any proceedings as to tie the plaintiff’s hands, and to compel that court to stay the prosecution of the suit. Thus, where an action was pending in a state court, the circuit court refused to compel the plaintiff and one of the defendants in the suit to interplead in the circuit court respecting the subject-matter in controversy, upon the ground that such decree “would be an exercise of that authority and control over the state court itself which can only be allowed to a tribunal of general jurisdiction under the same government.” City Bank v. Skelton, 2 Blatchf. 142.
But it is not improper for different courts to take jurisdiction of different actions respecting or growing out of the same subject-matter, although the effect of the judgment or decree of one court may be to modify or control the result of the suit in another court, and to limit or guide its decision. Thus, (to use the illustration given for another purpose in Bank v. Colbath, 3 Wall. 334,) “ a party having notes secured by a mortgage on real estate may, unless restrained by statute, sue in a court of chancery to foreclose his mortgage, and in a court of law to recover a judgment on his notes, and in another court of law in an action of ejectment to get possession of the land.
If. the note and mortgage have been made by a surety, and, as between him-and his principal, the latter was primarily bound to pay the debt, and there were equities which should compel the creditor to accept payment, if reasonably made, from the principal, a bill in equity would also lie in favor of the surety against the principal to compel him to pay the debt, and to compel the creditor, to receive the money, if paid before payment had been enforced from the surety’s property.- Neither would the existence of the previous' suits in the state court prevent a circuit court from taking jurisdiction of the last-named suit, although, if the decree of the circuit court was carried into effect before judgment had been entered in the state court, the judgment or decree of the latter court might be very materially influenced by the result flowing from the decree of the circuit court.
In this ease a bona fide indorsee and holder of a note has sued the maker in an action at law in a state court. The maker alleges that, by reason of certain facts, a court of equity can properly compel the indorser to pay the debt promptly, and the holder is- made a party to the bill so that it may be compelled to accept payment when made. The object of the bill is to force E. S. Wheeler & Go. to pay the debt, and, if practicable, to pay before judgment is obtained from the plaintiff’s property; but there can be no compulsory action by this court to prevent the bank from continuing to prosecute its suit in the state court, and to collect by execution. It can proceed as, rapidly as the state court will permit, and can collect its debt. If a decree is rendered in favor of the plaintiff in this court, and payment of its debt is made by E. S. Wheeler & Co. before judgment is rendered in the state court, the action of the court will be modified,
The prayers of the bill are twofold — to compel E. S. Wheeler & Co. to pay the debt, and to compel the bank to receive payment. The first class of prayers cannot be objected to, and the latter class is likewise unobjectionable, under the principles which have been suggested, if the prayers are properly framed. The first prayer is that the American National Bank be decreed to deliver up said three promissory notes for cancellation. Literally road, this prayer is objectionable, for it asks for cancellation without payment; which, under the allegations of the bill, the court would have no right to grant. The pleader intended to ask that the notes should be delivered to the plaintiff when paid by E. S. Wheeler & Co. This relief is not necessary; but it is proper, if the notes are paid by the indorsers, that they should not be outstanding as apparent debts against the plaintiff.
The prqyer that the avails of the cheeks may be applied in payment of the notes is not objectionable, it being understood that the bank, is at liberty to pursue all its remedies, and that no decree can he granted by this court restricting its right to prosecute the suit in the state court, and obtain and levy execution.
The demurrer is sustained, with leave to the plaintiff to amend as to the first prayer of the bill.