212 F. 348 | D. Ariz. | 1914
Motion to Strike.
Defendant has filed its motion to-strike the complaint from the files upon the ground that the attorney for plaintiff had not been admitted to practice in this court at the time he signed the complaint in the case at bar.
The motion to strike is denied.
Pleas in Abatement.
The defendant filed pleas in abatement against each of the causes of action, which pleas are founded on the pendency of an action brought by defendant here in the courts of Apache county, Ariz., against the plaintiff here and one Duran jointly.
It is alleged in these pleas that there is another action pending between the parties hereto involving the same matters and things in controversy in this action and describes the action as one pending in the superior court of Apache county, state of Arizona, wherein the defendant herein is plaintiff and Rouiller, the plaintiff here, and one Duran, mentioned in the complaint, are defendants. The plaintiff has demurred to these pleas as showing no defense to the action.
It has been repeatedly held that the pendency of an action in the state courts, was no bar to the prosecution of the same cause of action in the federal courts, and authorities appear to be so numerous as to render the question beyond the pale of argument.
The Supreme Court of the United States has held this doctrine in a long line of cases beginning in Wallace v. McConnell, 13 Pet. 136, 10 L. Ed. 95, and extending to Hunt v. N. Y. Exchange, 205 U. S. 322, 27 Sup. Ct. 529, 51 L. Ed. 821. These decisions are conclusive of the question, and the demurrers to the pleas in abatement are sustained.
Demurrers.
In answer to this contention it is sufficient to say that by the allegations of the complaint they have no interest or title in the property alleged to be converted, but such conversion is charged to have been done with full knowledge of plaintiff’s ownership. Nothing in this case can affect any right of the Durans, and they are not necessary parties, and the demurrers are overruled.