1 A.2d 708 | Vt. | 1938
By a policy issued as of March 13, 1935, the defendant insured the life of Morris A. Weiner for the sum of five thousand dollars. This policy contained a two year incontestability clause. After two annual premiums on said policy had been paid, the insured died on September 14, 1936, and this action of contract was commenced on October 6, 1937, by the beneficiaries of said policy, the administratrix of the estate of the insured, and the guardian of the minor beneficiary for the purpose of recovering the amount of the insurance stipulated in said policy. Meantime, on February 27, 1937, the defendant herein had brought its bill of complaint against the plaintiffs herein to the court of chancery in Caledonia County praying for the cancellation of said policy on the ground of alleged fraud and deceit of the insured in procuring the policy from said defendant. To the action at law the defendant insurance company filed its answer, setting up as its defense thereto the same fraud and deceit which it had previously alleged in its bill of complaint in the chancery suit as the basis of its prayer for cancellation of said policy of insurance. At the same time it challenged the jurisdiction of the court to proceed in the law case by filing its motion to dismiss, the title of which motion was later amended to read: "Objections to Jurisdiction." Therein said defendant alleged in substance that a suit having been commenced previously in the court of chancery for determination of the rights of the same parties with respect to the same subject-matter in controversy, the law court was thereby prevented from assuming jurisdiction over a law action between the same parties with respect, it was claimed, to the same subject-matter. After hearing by the presiding judge the defendant's objections to the jurisdiction were denied and overruled, and on exceptions to this action by the court the defendant comes to this Court in accordance with the provisions of section 2072 of the Public Laws. The general rule is well established in Vermont and elsewhere that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion of other tribunals. Whittier v.McFarland,
The circumstances under which this rule is applicable *25
have often been clearly stated. Where the pendency of a suit in one court is relied on to defeat a second suit in another court of concurrent jurisdiction, the identity of the parties, of the case made, and of the relief sought should be such that if the first suit had been decided it could be pleaded in bar as a former adjudication. 14 Am. Jur. 439, par. 246; Pacific LiveStock Co. v. Lewis,
Without laboring the point suffice it to say that in the present controversy, while the two cases might ultimately lead to the same result, they are obviously not for the same cause of action, and the same relief is not sought in each. The law action seeks money damages for a claimed breach of contract, while the chancery suit seeks only cancellation of the insurance contract, merely attacking evidence which, it is true, would doubtless be essential to the plaintiff in order to prove his claim in the law case.
It is obvious that in the chancery case certain facts may be proved which might be available in the law case as being conclusively established, provided they are properly presented, and provided, also, a decree in the chancery case shall have *27
become final. This would result from what is technically called estoppel by verdict. See Fletcher v. Perry,
Judgment affirmed and cause remanded.