*1 817 Surviving G. Wade, Jr., Neill and Neill Wade G. As Wade, Late Firm Partners Composed Wade, M. D. G. Wade, of Neill Heretofore Eugene v. Appellants, Jr., Neill G. Clower and of and Clower, Estate as Administrator Clower, Deceased, Appellee. M. D. A.
Division Opinion 31, 1927. Filed October 1927. Rehearing 10, Petition for denied December *3 Anderson, Appellants; H. L. for Hampton Hampton, & for Appellees.
Statement. J. Neill Wade Wade, G. and Neill Jr., G. and Brown, years D.M. Clower composed for some firm Wade, of Wade, and general Clower was engaged railroad construction Mr. business. M. D. Clower died and the of the firm business was carried on surviving part- ners, Eugene assisted Clower, Dr. brother and admin- of istrator the estate of deceased partner, until a certain construction was completed. contract surviving part- The ners and the of partner administrator the deceased were not able to make an amicable of partner- settlement ship In fact, affairs. suspicion considerable and distrust to appears have arisen between parties. There were several different suits between them, growing out of dis- putes regard parnership with matters, before the instan b brought by suit was against Dr. Clower the two surviving partners the Circuit Court of County Alachua for an accounting and settlement the partnership, and, inci- dentally, injunction against an per- sale certain partnership. suit admin- property This
sonal of the accounting partner- settlement of the istrator for an the Federal ship removed the defendants to matters was diversity citizenship, Dr. upon ground of Court on of the Georgia, but motion being citizen of Court. complainant to the State the cause remanded defendants, Wade, Sr., Neill G. Neill G. bill, and Jr., answer to filed a demurrer and both appeal an to this being took the demurrer overruled supersedeas. After defendant’s demurrer Court with exceptions answer to their the bill had overruled been pending had been sustained, had been and after the months, defendants in the for about State Court two against filed a bill in Court accounting the State suit for an Court settlement partnership defendant, Clower, affairs. The moved stay proceedings the Federal Court for that case on pendency account of suit in of the State Court subject involving matter, the same but this was de- motion complainants proceedings nied. The in the Federal Court *4 pressed hearing, this suit to with the a result that testi- mony had, accounting was taken and an and final decree any importance rendered before further action was in Court. proceedings in the State Meanwhile taken the in appealed from Court had been the State that the orders by opinion In this Court. his had affirmed suit been judge decree, final the re- with his Federal connection why a loss to the "somewhat at know marked that he in the suit admin- by been could not have settled estate partner (referring suit in to the deceased istrator present have made the suit Court), which would the State ’’ unnecessary. against Federal in the Court decree rendered In partner, attor- certain deceased administrator neys’ fees, amounting $6,000.00, incurred the surviv- ing partners the several suits between them and the partner Courts, administrator of the deceased the State preceding including suit, charged and not the instant were against reviewing the defendant administrator. After charging attorneys’ and parties, various suits between the surviving partners, fees incurred as above men- tioned, against partner, the administrator of the deceased judge Federal decreed that each of the in the required should Court be to bear their attorneys’ respective fees, attorneys’ and held that such proper charges co-partnership estate, fees were not on the provided but that the costs in said suit should taxed and paid partnership out of the assets. specific ruling will thus was no
It be seen there regard attorneys’ the Federal Court with to the fees which had in the instant suit in been incurred the State period during pendency, Court of its either before or after the time of the commencement of the suit Federal Court. decree, however, did the ac-
The Federal Court settle counting surviving partners and the admini- between the partner- partner distributed the strator of the deceased decreeing surviving partners should ship assets, partner certain pay the administrator of the deceased personal him certain money, and also deliver to sum assets, partnership and decreed that such property of the delivery property operate “shall as a payment decree, and shall be a full complete satisfaction of this surviving plaintiffs, as the complete settlement Wade, firm with partners of *5 the of M. D. of estate defendant, as the administrator deceased, and of the defendant Clower, of all the interests Clower, M. D. of interests of the heirs-at-law all of the ,the deceased, co-partnership in and all the of of assets Wade, Wade, operate and shall firm of and as plain- complete acquittance and unto full and release the liability plaintiffs, surviving and from the tiffs of all of as Wade, unto partners of said firm of Clower and the as of of M. D. defendant the administrator estate the Clower, deceased, of and unto all the heirs-at-law of the M. D. Clower-,deceased.” said Shortly final after rendition of the decree Court, case the defendants the instant Federal and supplemental answer, Court filed an amended State adjudication up and final decree which set every Court, “that all of kind alleging matters finally and duly in this suit and nature involved were entry of adjudicated settled, and since the said District Court these defend- said United States decree fully decree,” etc., said and “these have satisfied the ants in said cause plead here decree re- defendants Court, cently pending in States District South- the United Florida, release satisfaction District ern a bar herein, as to the said decree suit, an prosecution pray of this order this further dismissing finally at the Court this cause cost honorable complainant.” days filing of and supple- A after amended few answer, complainants’ solicitors filed motion mental proceeded thereof, and then portions certain to strike appointed special master who had been proof before a make attorneys’ before, costs and fees incurred sometime complainants complainant in the instant suit. by the before master the final introduced evidence also above to. The de- the Federal Court referred decree of testimony, time and after the had no fendants offered testimony his report, made taking master expired for *6 proceedings him, the he recited had before the etc., being testimony, exhibits, report, attached to his statement, closed with this “from the exhibits filed the complainant’s appears solicitors it accounting that the adjudicated involved in the instant suit finally has been Call, Judge, Honorable R. M. District the Court for Florida, the Southern District of in a suit between the parties. appears same further It the suit the Federal Court instituted subsequent to filing the process the service the instant case. Under existing the I conditions have deemed it wise not to make finding, report testimony but to the to Court and the for ask to instructions as whether the Court authorizes a ’ finding attorneys as to the fees and costs, which is insisted ’’ upon by complainant. counsel for gave hearing notice of final argu- ment of upon pleadings, proof the cause special they master’s report, and apply would for a decree requiring pay to defendants solicitors’ fees and costs incurred in the case. This notice was served attorney of record Judge defendants. The Circuit decree, days rendered his and within a few thereafter their defendants motion from filed to remove the files report special open master and to the final decree, upon ground, alia, impossible inter that it was attorney present for the defendants’ at hearing to be master, by special professional before the his reason of engagements Jacksonville, at and that the defendants had opportunity proof any had no any or enter introduce objections testimony complainant. offered appear It does not from the record that solicitor for taking defendants before time set for the of testi- had mony any made to obtain effort an extension of time by agreement or otherwise.
824 ruled appear have been
The above motion does not to days solicitor upon. However, a few later the defendants’ judge petition rehearing, filed for which the circuit steps further were taken the case for some granted. No months, complainant’s gave solicitors until the counsel duly notice, defendants which seems to have been the County, an application of Duval that by served the sheriff hearing final and would be made on date named for a upon pleadings, proofs case the and argument of the upon rehearing report, master’s the which had been named, judge circuit rendered allowed. On the date the case, appeal final which taken. the decree this from this is that the had been submitted This decree recites cause by rehearing argued complainant counsel and and for the granted defendants, respectively. The decree the motion complainant parts to strike certain of the amended and of defendants, supplemental excepting answer of the such part up said answer as set in defense the final decree by judge the of the United States District Court rendered “involving partnership accounting between same 16th parties, April, decree was rendered the having complainant’s been filed 1924, evidence continues, “and appear- solicitor.” The decree it further report testimony ing from the of the to the Court before special bill master filed the United States Florida, District Court for the Southern District of involv- subject by N. ing matter, G-. Wade and N. same G-. surviving partners, against Eugene Jr., as Clower, deceased, M. D. and as administrator of was filed subsequent instituted the said court acquiring jurisdiction this Court of the subject herein, duty matter involved and that it is the complete adjudication herein, except this Court finally adjudicated by accounting already as to the judge testimony having said said Federal complainant incurring been taken herein as to the attorneys’ of costs and fees as to amount of attor- neys’ complainant’s fees to be allowed to solicitors herein: ordered, thereupon, upon it ad hereof, consideration is judged decreed is entitled to attorneys’ recover the costs and fees incurred him in case, complainant, Eugene Clower, this and that as *8 Clower, administrator of and for of M. D. the estate de- defendants, ceased, have and and do recover of from the Wade, Jr., surviving part- Neill G. Wade and Neill G. as Wade, Wade, ners of the firm of and late Clower here- composed Wade, of Neill M. D. and N. tofore G. Clower Wade, $3,500.00 attorneys’ Jr., sum of as G. fees by suit, together said with incurred this up costs of suit to be taxed the clerk this by this of * * * thirty paid Court and that said sums be within days date, paid, and if from not so then that execution do upon application complainant’s issue hereon of solicitors chattels, goods to be levied and the lands and tenements, defendants, Neill of the said Neill G. Wade and Wade, Jr., surviving partners firm as of the late of G. Wade, and as aforesaid. It is further attorneys’ payment that after said fees ordered costs, complainant’s bill dismissed.” be attorneys’ to the reasonableness of the fees incurred As complainant, Court had before it'evidence taken before the master as to the amount of work counsel done testimony complainant, attorneys, as well as of two testifying $4,000.00 would a one reasonable fee other, $5,000.00. lodged appellants also a motion in this Court to transcript against appellees from the and to tax strike expenses including transcript in the certain the costs portions appellants of the record deemed as un- the. encumbering necessarily the record. above) (after stating J. the facts as :
Brown, Except judgments subject as of State courts are proper Supreme Court, review cases or originally brought as to those actions in a State court may lawfully be removed to a 'Federal are the Courts of the United States and the various States independent other, of each a pendency suit is' a bar to a such one such courts not another involving controversy, although, court same as matter ordinarily comity, courts will not determine one of such previ- controversy of which another of such courts has ously jurisdiction. 1152. obtained 15 C. J.
Where a and Federal court juris- State have concurrent privies diction over the same or and the sub- same ject matter, jurisdiction the tribunal where first attaches *9 exclusively retains it and will left to determint the controversy fully perform and to juris- and exhaust its question diction and decide every properly to issue or aris- ing jurisdiction in the case. This continues until judg- ment rendered in first action is and extends satisfied proceedings ancillary which are or incidental to the brought. action Accordingly, jurisdiction first where the of a attached, State or a court has once it cannot away be taken proceedings subsequently or arrested court; practice instituted in the other but the usual is for in brought the court which the second action is not to action, suspend dismiss proceedings such but to therein until first action is tried and 15 determined. C. J. 1161-1163; Judgement, 939’a; L., Black on sec. 7 R. C. seq. 1067 et
827 176, 28 L. Ed. Heyman, In of Covell v. U. S. the case States, 390, Supreme Court of the United it was said jurisdiction, “The which courts of co-ordinate forbearance single system, under a exercise toward each administered other, avoided, avoiding are interfer conflicts whereby comity other, principle process ence with of each is a of utility perhaps higher with no sanction than the concord; comes from but between State courts and those States, something principle it is It is a the United more. right law, and, therefore, necessity. It and of leaves nothing to discretion or mere convenience!” attempted removed
Although, when this cause was to be States District Court for the Southern the United distinguished judge of that Court Florida, District of court, subsequently remanded the cause to the State court, enjoin proceedings in the State declined to decree, quoted from, in that he remarked his above why partnership “somewhat at a to know” loss admin- estate could not have been settled the suit yet, partner court, istrator of the State the deceased the State court suit moved when the proceedings, setting up pend- Federal court to its stay ency involving priority the suit the State court subject matter, same and the the Federal same opinion for some reason an order without disclosed, not the motion. overruled stay proceeding in complainant’s for a motion overruled, having and, proceed- Federal court been delayed by dilatory ing having been the State court *10 defendants, proceeding in the tactics of counsel ripened final before the termi- court into decree Federal in court. nation of the suit the State brought operation the follow of affairs into This status ing propostions, are in Secs. 791 and which well stated Judgments: 939a Ed. of 2nd of Black of judgment “The fact that a was obtained after pleaded in commencement of the suit which it is does not prevent judgment being its bar. It is the first for the defense, same cause of action that constitutes an affective regard without in which the to order or time suits prior judg- were commenced. Hence it even follows that a upon plea of a ment the same cause of action sustains the recovery although judgment in an former is action pleaded.” subsequent commenced one in which it is to the upon “And where suits the same cause of action are pending in a and in a simultaneously State court Federal court, judgment a final entered in either court will binding any regard in other, and conclusive without question to the which suit was first commenced.” L., 1069-70; See 7 R. 15 R. L. also C. C. 889-990. here, particularly appropriate This inasmuch doctrine is complainant as the after his motion to suit, the instant stay proceedings overruled, in the Federal court had been participated accepted proceedings in that court and rendered, there fruits of without decree therein appeal. observed,
It will have been however, that attorneys’ fees and court adjudi- costs the instant suit were not cated in the court. The decree in that charged against complainant court certain fees incurred three different between preceded cases which case, say instant nothing but had whatever about the attorneys’ ease, fees and costs in this which was then pending undisposed in the State court. Whether judgment in these circumstances a the Federal principles judicata, operate of res could a bar as ’ recovery attorneys fees,
829 bill expressly prayed allowed tbe filed to be were decis- upon wbicb no court, question him in tbe State is side, nor bave we point bave been cited either ions any. find been able to a former general as to tbe conclusiveness
Tbe
rule
731:
Judgments, Sec.
judgment
in Black on
is thus stated
in a former
judgment
“A
merits rendered
on tbe
upon tbe same
privies,
tbe same
or their
between
jurisdiction,
is
competent
action, by
a court of
cause
every
wbicb was offered
matter
only
conclusive not
as to
claim,
every
but as to
and received to sustain or defeat tbe
liti
propriety bave been
might
with
other matter
15 R. C.
See also
that action.”
gated and determined in
261;
107
103,
Fla.
So.
962-4; Grey
Grey,
v.
91
951,
L.
v. Car
Miller & Co.
2, 56;
11
Canova,
v.
Fla.
G. L.
Yulee
michael-McCalley Co.,
We are of tbe rule unmindful Gentry, 595, 473, 90 Fla. but Futch v. So. Company opinion we of tbe tbe facts of this case it are operation fall of that Nor does does not within tbe rule. doctrine this case fall within tbe influence of tbe announced *12 830
in Gallard, Lewis v. 172, 797, 70 Fla. 69 So. and tbe eases therein cited.
“As a rule costs of a suit for a partnership account- ing, including experts attorneys, the fees of and of are to paid partnership out of if estate, or is insuffi- this they cient partners are to be borne in proportion respective to their partnership shares. in But, as other equity suits, may the court discretion in exercise the award costs, infrequently and it not charges costs the entire to one or some of partners, punish- either as a sort of misconduct, needlessly ment for or because has he forced or prolonged litigation, or because for some other reason justice Cyc. the court that concludes demands it.” 30 749'-750.
“A judgement partnership accounting in an action for upon and settlement is as conclusive thereto brought court, to all issues until it properly before the legelly aside; has been set but it does not conclude as to ’’ matters not before court at of the settlement. the time Cyc. 30 751.
We conclude, therefore, where, in case, as this equity in defendants in suit State court an accounting and settlement of a partnership, pending such suit, bring against suit the Federal court the same procure cause of action and a decree specifically adjudicate therein which does not the matter of solicitors’ pending fees court costs court, priority jurisdiction, State which latter court had jurisdiction finally State the exercise of whose determine entire cause of action has been thus antici- pated interrupted, may go adjudica- complete on to a tion scope of all matters within the issue of the cause pending appropriately or thereto, therein incidental adjudicated already have not been settled and the decree certainly to such court, so as procured in the Federal and court costs as the allowance of solicitors’ fees matters power of the peculiarly which are within the that case fix court to and determine. State transcript certain Appellants’ motion to strike from the are satisfied that portions of the record will be denied. We instead papers might been recited while some of these have *13 they required by appellees to be copied in were full, negligible quan good faith and all placed but therein question tity light on the documents tend to throw of these appeal.& in this involved the chancellor in ample evidence to sustain There ’ decree, in his
allowing in the amount named solicitors fees appellants seems but aside from this the contention excessive, but that the been, that the amount was have not precluded acting from reason of the court was court’s decision. ,on of counsel all the contentions
We have considered questions in controlling deem that the both sides but we principles above stated. governed this case are affirmed. appealed from therefore be final decree will Affirmed. Strum, J., J.,C.
Ellis, concur. J., J. J., and Terrell con- Buford, P. Whitfield, opinion. cur in the