89 W. Va. 600 | W. Va. | 1921
By the usual procedure, G. F. Keeney and Fred Mooney, under indictment in Kanawha County and in Logan County for the same offense, being charged in each as accessories before the fact to the crime of murder alleged to have been committed in said last named county, and now in custody by virtue of process issued on the indictment in said first named county, seek a writ of prohibition against the Judge of the Circuit Court of Logan County, to prevent him from proceeding against them, on the indictment pending in his court, upon the theory of concurrent jurisdiction of the offense in both courts, and antecedent attachment of.that of Kanawha * County, the petitioners haying been first arrested and incarcerated under its process, and no arrest having been effected under the Logan County process, although the Logan County indictment was first found. The immediate purpose of this proceeding is prevention of arrest of the petitioners on a capias issued by order of the Circuit Court of Logan County, November 5, 1921, and now in the hands of the .Sheriff of Kanawha County, and the ultimate purpose, t.o prevent trial on the Logan County indictment while the other is pending in Kanawha County.
If, upon the admitted facts alleged and the law as claimed by the petitioners, the remedy sought is inappropriate or unavailing, it is unnecessary to inquire whether the legal propositions advanced in support of the application for it are sound or not. For the purposes of the case, the constitutionality, of sec. 8, ch. 152, Code, interpreted as authorizing indictment and trial of an accessory, in either county, when the accessorial acts occur in one county and the crime is consummated in another, may be conceded. So may the correctness of that interpretation, the existence of concurrent jurisdiction and prior attachment of that of the Intermediate Court of Kana-wha County. If, all of these propositions being so conceded, prohibition does not lie, there is no occasion for questioning their soundness. No inquiries as to them properly arise. "We proceed, therefore, to the inquiry as to the applicability of the remedy sought.
This argument assumes lack of jurisdiction in the second court, in every instance in which the saíne plaintiff institutes two suits against the same defendant, upon the same cause of action, in different courts. Viewed in the light of ordinary procedure not involving any seizure of person or property, its fallacy is apparent. Pendency of a former suit for the same cause of action, whether in the same court or another, is mere matter of abatement, and must be pleaded in abatement, and at the first opportunity, else the defense is lost. Robrecht v. Marling, 29 W. Va. 765, 775; Delaplain v. Armstrong, 21 W. Va. 211; Bradley v. Welch, 1 Munf. 284; Monroe v. Redman, 2 Munf. 240. If this defense were jurisdictional, in the sense of lack of power in one court to try an action identical with one pending in another, and render judgment, the rule respecting its interposition would not be so strict. The defense is a personal privilege allowed the defendant, rather than a lack of power in the court; wherefore, upon his waiver of it, by failure to set it up by plea, filed at rules, the court may proceed to hear and determine the case. The rule by which a plea of another suit pending abates the one in which it is filed and sustained has, for its object, mere prevention of unnecessary vexation of a party by two or more suits upon the same cause of action. N. & W. R. Co. v. Nunnally’s Adm’r. 88 Va. 546; Olmins v. Delaney, 2 Str. 1216; Richards v. Stuart, 10 Bing. 322. The fact that it must be set up by a plea, brought to the attention of the court in a strictly formal manner, and without the slightest delay, proves its non-jurisdictional character.
Nor is there any precedent in our decisions for its avail
Tt does not follow, however, that a defendant must submit to two judgments for the same cause of action. He may waive or lose his right to have the second suit abated by reason of the pendency of the first, and yet prevent two judg-. ments, by pleading the judgment first rendered, in bar of further prosecution of the other’ action, in which judgment has not been recovei’ed. Both suits may he prosecuted and defended, each as if the other were not pending; but the moment judgment is rendered in one of them, for either plaintiff or defendant, it is a weapon in the-hands of the defendant with which, by pleading it, he may defeat the other action. Here, again,- is a demonstration of the unsoundness of the proposition that attachment of the jurisdiction of one of two courts of concurrent jurisdiction deprives the other of its jurisdiction. The jurisdiction of the other continues, subject to power in the defendant to defeat it by proper procedure in the case and at its bar, but not otherwise. In all such cases, there is complete jurisdiction of both subject matter and person, in both courts, until that of one of them is ousted by a plea in abatement or a plea of res judicata. A cause of action concurrently cognizable by two courts belongs to the jurisdiction of the one in which it is first brought and is excluded from that of the other, only in a potential sense, not actually. The law confers upon the parties the right to confine it to the former and exclude it from the latter by proper procedure. This is the sense in which the observation respecting this subject, so often found in the books, must be taken.
These conclusions bring the procedure in cases involving seizure or custody of persons and property clearly within the principle governing cases in which it is not involved. On the plea of another suit pending, an issue is made as to the identity of the cause of action and parties in the two cases. And no doubt the jurisdiction of the court in which it is pending may be a proper subject of inquiry. Even though the identity of the cause of action and parties and the jurisdiction of the court may be clear beyond question, the plea must be filed and the facts it avers established, else the court of second cognizance may proceed. In cases of seizure, the same principle applies, but the procedure may be different. In a criminal case of concurrent jurisdiction, the issues might be raised by a plea, or they might arise upon the return of the officer endorsed upon the process, or process against him or some other officer. The procedure need not be defined nor
In the argument, the issue'has been correctly treated as one of jurisdiction. Prohibition lies only in case of the inferior court’s lack of jurisdiction in some form. Its lack of jurisdiction, if any, confers jurisdiction by prohibition upon this court. When it has jurisdiction, we do not. Our decisions uniformly hold that prohibition cannot be awarded upon any ground save lack of jurisdiction in the inferior court. No lack of jurisdiction in the Circuit Court of Logan County having been shown, the writ cannot be awarded consistently with law.
As- a precaution against misapprehension of the scope and effect of this decision, we observe that it is limited to the facts upon which it is predicated. We are not to be understood as saying or intimating that a court of concurrent jurisdiction may not, in a.case of this kind, overstep the limits of its jurisdiction by its decision upon an application for release, or by its subsequent action. The point at which its jurisdiction terminates in such cases is not now a subject of inquiry here. It certainly extends to and includes a hearing and decision as to whether cognizance has attached. There are instances of action in excess of jurisdiction, by the judgment rendered upon a hearing properly entertained. Bracy v. Robinson, 83 W. Va. 9, 10; In re Nielson, 131 U. S. 176; Ex parte Milligan, 4 Wall. (U. S.) 131; Ex parte Long, 18 Wall. (U. S.), 163; In re Snow, 120 U. S. 274; Ex parte Wilson, 114 U. S. 417.
There are cases in which the writ of prohibition has been awarded by superior courts against inferior courts of concurrent jurisdiction, to prevent one from trespassing upon
For the reasons stated, the writ prayed for will be refused and the rule dismissed.
Writ refused.