White v. Whitman, 1 Curt. 494

White v. Whitman

1 Curt. 494 | U.S. Circuit Court for the District of Rhode Island | 1852

CURTIS, Circuit Justice.

The pendency of another action for the same cause in a foreign court, is not a good plea in abatement at the common law. The question is, whether the court of the state of Connecticut is to be considered a foreign court, within the meaning of this rule. In Browne v. Joy, 9 Johns. 221, it was held that such a plea of a’ former action in another state court, was not a good plea; and in Walsh v. Durkin, 12 Johns. 99. the same law- was held applicable to a plea of a former suit pending in a circuit court of the United States. These eases seem to me to have been correctly decided. Though the constitution and laws of the United States require, that the judgments rendered in one state shall receive full faith and credit in another, yet, in respect to all proceedings prior to judgment, the courts of the different states, acting un*1030der different sovereignties, must be considered as so far foreign to each other, that a remedy sought by judicial proceedings under one, cannot be treated as a mere and simple repetition of a remedy sought under another. There may be real advantages to be gained, in respect to the property on which an execution may be levied, or otherwise, by resorting to an action in another state. And. the same considerations are applicable to a second suit in a circuit court of the United States, while one is pending in a state court. In Wadleigh v. Veazie [Case No. 17,031], Mr. Justice Story declared that such a plea could not be allowed. In this ease, the plea is also insufficient, for other reasons. It- does not show that the court of Connecticut has jurisdiction of the action there pending; and for the reasons given in Newell v. Newton, 10 Pick. 470, this is a fatal defect. Nor is it verified by affidavit, as is required by the eighth rule of the court, if any matter of fact is contained in it; and this plea does contain two traversable facts: that the parties and the cause of action are the same. Trenton Bank v. Wallace, 4 Halst. [9 N. J. Law] 83. The demurrer is sustained, and the defendant must answer over.