70 Wis. 611 | Wis. | 1888
Two questions are presented by this appeal: (1) Was the motion to dissolve the injunction properly denied? and (2) Were the demurrers to the complaint properly overruled? On the last question it will only be considered whether the circuit court of Dodge county has jurisdiction of this action, and whether a cause of action is stated in the complaint.
1. Was the motion to dissolve the injunction properly denied? The judgments of this court in Wood v. Lake, 13 Wis. 84; Platto v. Deuster, 22 Wis. 482; and Endter v. Lennon, 46 Wis. 299,— answer this question in the negative.
Wood v. Lake was an action brought in a court of this state to foreclose a mortgage. Afterwards an action was brought in the district court of the United States by a creditor of the mortgagee and plaintiff in the foreclosure action, in the nature of a creditor’s suit, to which both the mortgagor and mortgagee were parties defendant, to enforce payment of the mortgage debt to the plaintiff in such creditor’s suit. The defendant in the state court — the mortgagor — answered the pendency of the action in the United States court, in bar of further prosecution of the foreclosure action until the suit in the United States court should be determined, and asked for a stay of proceedings until that time. This court held that when the suit in one court is commenced prior to proceedings in attachment in a foreign court, such proceedings cannot arrest the suit, and applied to the case the maxim gui prior est tempore potior est jure. And it was said that this is especially true
In later cases this court has adopted this rule as applicable to actions pending in two of our own courts of coordinate jurisdiction. Those cases are in point here, and are conclusive of the question under consideration. Thus in Platto v. Deuster, 22 Wis. 482, it was ‘held that the circuit court of Milwaukee county had no power to restrain the execution of a writ of assistance awarded upon a judgment of the county court of that county, they being courts of co-ordinate jurisdiction. In that case this court 'answered in the negative the question, Will an injunction issue from one of these courts upon a new suit commenced to restrain proceedings under a judgment in equity rendered in the other? In Endter v. Lennon, 46 Wis. 299, the rule was held still more broadly. It was there held that a suit in equity will not lie to enjoin the execution of process issued in another such suit, whether the second suit be brought in the same or another court, by a party or by a stranger to the first.
It is true that in the above cases the actions or proceedings sought to be restrained by another court were! in equity. It was argued in this case that because the action in the Winnebago circuit court was at law, the rule of the above cases is not applicable. We think otherwise. The circuit court of Winnebago county has full equitable as well as legal jurisdiction. It can grant equitable relief against a judgment at law rendered by it as fully and amply as any other court can grant such, relief. The wh'ple reasoning of the court in support of the above rule applies
¥e conclude, therefore, that the motion to dissolve the injunction should have been granted.
2. Has the circuit court of Dodge county jurisdiction of this action? or, what amounts to the same thing, Does the complaint state facts constituting a cause of action in that court? The determination of the question on the injunction has a bearing upon this question, for without an injunction against the enforcement of the Winnebago county judgment the action in Dodge county may, probably will, be barren of results. Should that judgment be enforced, as it doubtless would be, a judgment in the Dodge county circuit court would be inoperative to protect the plaintiff company from a double payment. Indeed, having paid the amount of the Winnebago county judgment into court in this action, should the Illinois parties establish their right to it, the money would, we think, necessarily be awarded to them. Thus double payment would seem to be inevitable, unless the Dodge county circuit court should shape its orders and judgment with reference to the proceedings in the Winnebago court on its judgment. That such results would be probable, were the jurisdiction of the Dodge circuit court sustained, is a persuasive argument against its jurisdiction. As a matter of course, if that court has no jurisdiction of the action the complaint does not and cannot state a cause of action. Aside from the considerations just suggested, the question whether the complaint states a cause of action has been determined by this court in analogous cases. These are Parish v. Marvin, 15 Wis. 247;
Those actions were in the nature of bills of review, while the present action, in one aspect, is in the nature of a bill of interpleader. Tet it has another aspect, which renders it analogous to a bill of review; for, if properly brought, it might result in annulling the judgment of the Winnebago circuit court in so far as it adjudges the fund in controversy to Sloan and Corry. No good reason is perceived why the rule of those cases should not be applied in this case.
In Parish v. Marvin and Fenske v. Kluender, it was1 left undetermined whether those actions could be maintained in the courts in which the judgments sought to be reviewed were recovered. But in McDonald v. Allen that question was resolved in the negative, as applied to a case in which the court rendering the judgment has power in the same action to give the relief sought in the independent action. In that case a sheriff filed a bill of interpleader against contesting claimants for money in ,his hands collected by ,him on an execution issued out of the same court in which] the action of interpleader was commenced. A general demurrer to the complaint was sustained on the ground that, because the sheriff could relieve himself from responsibility by paying the money into court and making full return of the facts out of which the controversy arose, giving the claimants notice of what he had done, he could not maintain the action of interpleader. In such case the court has ample power, by a summary proceeding after judgment, to ascertain who is entitled to the money, and to order it paid
In the present case the plaintiff company may pay the amount of the judgment against it into the Winnebago circuit court, and on a proper showing that court will grant a motion to bring before it all claimants of the fund; will determine, by appropriate procedure, who is entitled to it; and will order the money paid accordingly. If the Illinois creditors do not choose to contest their claim in such proceeding, the plaintiff, for its own protection, may show, if it can, that they are entitled to the fund by virtue of their garnishee proceedings in Illinois; and, if found so entitled, the court will order it paid to them, although they failed to appear. This would be done in the interest of the insurance company, to save it from the peril of liability to pay twice. In short, that court has as ample power over the whole subject in such a proceeding as any court would have in an action of interpleader. *
We have no controversy with any of the cases cited by the learned counsel for plaintiff (one of these being the case of Allen v. Watt, 79 Ill. 284) to show that the Chicago creditors have obtained the first lien on the fund in controversy by their garnishee proceedings in the superior court. If they have obtained such lien, the circuit court of Winnebago county, if properly called upon to pass upon the question, will so hold. If they have not obtained such lien, the court will negative their right to the fund. In short, that court will decide the matter according to law, and so, presumably, will the courts of Illinois. If the plaintiff’s case is properly presented to both courts, there is but little danger of a conflict of decision which will result in forcing the plaintiff to pay the same demand more than once. It is scarcely necessary to say that the fact stated by counsel, that the Illinois creditors who instituted the garnishee proceed
Each of the orders appealed from must be reversed, and the circuit court directed to dissolve the injunction and sustain the demurrers.
By the Court. — It is so ordered.
