Sayers v. Auditor General, 82 N.W. 1045

Sayers v. Auditor General

82 N.W. 1045

Mich.

1900

Check Treatment

Grant, J.

(after stating the facts). The object of the two suits is the same, namely, the cancellation of the deed. It is the gеneral rule that a party cannot split his cause of action, and bring suits in detail. This case is a splitting of reasons, rather than of a cause of action. The parties arе the same; the cause of action, viz., an invalid deed, is the same; the object sought for, viz., the cancellation of the deed, is the same. It cannot be denied that relator might have included in his chancery suit the same reason that he now urges in this proceeding. There should bp an end of litigation, and when a party proceeds in chancery to рrocure the annulment of' a deed he must allege and show his reasons. He must set forth all thе reasons he has against the validity of the deed. He cannot allege one reason, have tha.t determined against him, and then bring suit for another reason. See Cornett v. Cornett, 122 Mich. 685 (81 N. W. 920).

The cases cited by counsel for relator do not apply. In Conley v. Auditor General, 123 Mich. 83 (81 N. W. 963), it was insisted that the case of Conley v. McMillan, 120 Mich. 694 (79 N. W. 909), was a bar to the proceeding. That case did not involve proceedings subsequent to the deсree. Neither does this. The deed in Conley v. Auditor General was held void because of illegality in the sale itself after decree. It is not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sought in this proceeding to annul the deed because of proceedings subse*261quent to the sale, but of a defect before the decree was made. The situation, then, is this: The decree in. the proceedings taken by the auditor general is held valid in the case handed down herewith, and, if we sustain the relator’s position in this casе, we declare it invalid. Is it consistent to enter a decree in chancery holding the deed valid, and at the same time enter a judgment in a proceeding at law declaring it void? People v. State Treasurer, 24 Mich. 468, is not in point. The parties were not the same. The case pending in another court was not claimed to operate as a bar. Speaking of the bill that had been filed in the United States circuit court, this court said that its “purpose was so clearly in violation of legal principles that we cannot hesitate to regard it as one over whiсh the court where it is pending will not assume jurisdiction to grant relief.” In Joslin v. Millspaugh, 27 Mich. 517, the question arose under the foreclosure statute. It was held that, while the statute prohibited proceedings at lаw for the recovery of the debt while ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the foreclosure suit was pending, the question permitting such proceedings was to be determined by the chanoery court, and not in the suit at lаw. In People v. Wayne Circuit Judge, 27 Mich. 406 (15 Am. Rep. 195), many cases are cited, and the question fully discussed as to the practice wherе more than one suit is pending. The question there was whether an adverse decision in an аction in rem against a vessel in an admiralty court was a bar to a suit in personam in a State court to recover for the same services sought to be enforced by the proceeding in rem. Goodrich v. White, 39 Mich. 489, is another case arising under the foreclosure statutе. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍above are the cases cited to sustain relator’s contention.

In State v. Patterson, 11 Neb. 266 (9 N. W. 82), the application was for the writ of mandamus to cоmpel a county treasurer to execute certain tax deeds. To this appliсation answers were filed setting up the pendency of actions in other courts to have the action in the tax proceedings declared void. The court say:

*262“ It appears that tax deeds have already been issued to the relator for the lands in controversy, and that the actions referred to in the answers were instituted for the purposе of setting aside said deeds and the proceedings upon which they are based. This being thе case, this court will not entertain jurisdiction. To do so would be oppressive. The cаses are pending in a- court having jurisdiction of the subject-matter and the parties.”

Where one has instituted quo warranto proceedings to test his title to an office, mandamus will not liе to induct him into office during ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the pendency of an appeal in the quo warranto proceeding. Hannon v. Commissioners of Halifax, 89 N. C. 123.

In Hardcastle v. Railroad Co., 32 Md. 32, a suit in equity was pending for an injunction, discovery, and general relief for the identical causes of complaint contained in the petition for a mandamus. The court say:

‘ ‘ That it [the writ of mandamus] will not be granted if the party has another аdequate and specific remedy is fully supported by authority. It is not, however, a sufficient аnswer to an application for a mandamus that the party might have redress in a court of_ equity; for, when the writ is refused ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍because there is another specific remedy, that remedy must be at law. Tapp. Mand. (m) 22, and note it; Mos. Mand. 18; People v. Mayor, etc., of New York, 10 Wend. 393; Proprietors of St. Luke’s Church v. Slack, 7 Cush. 226. But the rule is otherwise if the party asking for the writ has, before that time, gone into a court of equity, and there instituted proceedings under which all the relief may bе obtained that is asked for in an application for a mandamus.”

The same rule was held in People v. Wiant, 48 Ill. 263; People v. Common Council of Chicago, 53 Ill. 424; People v. Warfield, 20 Ill. 159; Swartz v. Large, 47 Kan. 304 (27 Pac. 993). There may be an exception to this rule in extraordinary cases. People v. Salomon, 51 Ill. 37, 55.

The writ is denied.

The other Justices concurred.