115 Ga. 171 | Ga. | 1902
Mrs. Ludie M. Wilson as administratrix of her deceased husband, George T. Wilson, brought in the city court of Atlanta, against the Atlanta, Knoxville and Northern Railway Company, an action for the homicide of her intestate, which she in her 'petition alleged had been tortiously caused by the defendant in the State of Tennessee. The company filed a plea in abatement, alleging that “ at the time of the filing of this suit the said plaintiff was prosecuting and is still prosecuting an action in the superior court of Cobb county, Georgia, for the same cause and against the same party,” that “ said suit was duly served upon the defendant in said case, and the same is now pending in said court undisposed of,” and that “the allegations in the declaration so pending in Cobb superior court aforesaid refer to and describe the same accident, and in all respects set up the same cause of action.” By an amendment to this plea the defendant alleged “ that the superior court of Cobb county has jurisdiction of the case heretofore filed therein by said plaintiff against said defendant, under the allegations of the declaration in said case.” In a second amendment to the plea in abatement it was averred that the plaintiff’s petition in the case pending in Cobb superior court alleged that “the Atlanta, Knoxville & Northern Railway Co. is a corporation doing a general railroad business under a charter granted by the State of Georgia,” and that “ the principal and general offices of said Atlanta, Knoxville & Northern Railway Company are situated in the city of Marietta, in said county of Cobb.” The plaintiff .demurred to the plea in abatement as originally filed, on the ground that “ it failed to allege that the court wherein the former suit was pending had jurisdiction of the action,” and to the plea as amended, on the ground “that there was still no specific allegation of jurisdiction in the court wherein said former suit was pending, and that as amended the plea was still insufficient.” These demurrers were overruled. By consent of counsel all questions of law and fact arising upon the issue made by the petition and plea in the present case were determined by the court without the intervention of a jury. The plaintiff introduced in evidence a certified copy of a plea
The doctrine that a defendant should not be vexed by two or more pending suits for the same cause of action is universally recognized, and a plea in abatement is the proper remedy for obtaining the benefit of that doctrine. It is thus stated in oür Civil Code, §3737: “No suitor is entitled to prosecute two actions in the courts of this State at the same time, for the same cause and against the same party; and in such a case the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously ; and the pendency of the former is a good defense to the latter, if commenced at different times.” Courts differ only as to what circumstances call for the abatement of a subsequent action.
As the Connecticut rule has apparently been adopted in this State, it is of the utmost importance to inquire how it was, at the time of its adoption here, understood and applied in Connecticut and in other States in which it had been given effect. The parent case is perhaps that of Durand v. Carrington, 1 Root, 355. There it was held that a plea in abatement, based on the ground of lis pendens, was not sustainable where an “ attachment was not legally served so as to hold the estate taken thereby; and the plaintiff, discovering said defect,” sued out another writ and abandoned the first. In Ward v. Curtiss, 18 Conn. 290, wherein it was held that the plea in abatement was not good, it appeared that a writ of attachment was served, but not returned into court because the plaintiff discovered that the debt sued on was not due; and afterwards, the officer having erased his entry of service, the same writ was again prosecuted. In Quinebaug Bank v. Tarbox, 20 Conn. 510, it was held that a second writ of error might be prosecuted where the first for obvious defects would have been ineffectual and was for that reason abandoned. Hatch v. Spofford, 22 Conn. 485, was a case in which the plea in abatement set up that the first suit was pending in another State, and the plea was denied. The ruling in Prosser v. Chapman, 29 Conn. 516, was, that where the “prior suit was no otherwise defective than in the misjoinder of counts in the declaration, . . the writ in that suit could have been amended by striking out one of the counts,” that, accordingly, that suit was “not to be regarded as an ineffective one,” and therefore the second suit
The foregoing list of cases will, though we do not undertake to say that the same is exhaustive, suffice, we think, to show that prior to 1863 there was no general tendency on the part of the American courts to virtually abrogate the well-known and thoroughly settled doctrine of the common law bearing on the subject under discussion, or to extend beyond its legitimate application the modification engrafted upon the English rule by the Connecticut
There is a Virginia case which seems to be out 'of line with the above-cited authorities. See Norfolk & Western R. R. Co. v. Nunnally’s admr., 88 Va. 546. It there appeared that when the first suit was called, the defendant company moved, for certain reasons, to quash the process issued therein, and its motion having been overruled, it filed exceptions. The plaintiff, apparently fearing the outcome of these exceptions, hastened to file another suit, so as to come within the statute of limitations, and subsequently dismissed the first suit. ' Thereupon the company filed a plea in abatement, setting up the pendency of the first action at the time the second was brought. The Supreme Court of Appeals characterized the company’s latter move as “inconsistent,” and held that “ as the plaintiff dismissed his first suit as soon as he safely could, and was compelled to bring the second action to avoid the bar of the statute, the court exercised a wise judicial discretion in striking out the plea” (pp. 549, 550). The reviewing court did not expressly undertake to say the process in the first suit was void or fatally defective, nor to rule upon this question at all, unless the fact that it spoke of the plaintiff’s being “ compelled to bring the second action to avoid the bar of the statute” was the equivalent of a ruling on this point — an inference hardly justified; for, if the process in the first suit was void, the plaintiff could, as matter of right, under the Connecticut rule, have brought his second action, and in refusing to abate the same the trial court could not logically be said to have “exercised a wise judicial discretion.” This decision, therefore, would seem unwarranted, save under the “New York ride” above mentioned, or an entirely new rule of which the Virginia court can justly claim to be the original discoverer. Certain it is that the Supreme Court of Georgia has not heretofore established such a precedent with a view to administering-what might be termed “ natural justice.” The Connecticut rule, as ex
Some of the courts seem to think that a plaintiff who has begun duplicate actions-shows good faith by voluntarily abandoning the first before calling upon the court to overrule a plea in abatement to the second; but none of them, so far as we know, have ever countenanced a plaintiff’s insistence upon the alleged right to-keep “ both irons in the fire,” as is true of the plaintiff in the present suit. There is undoubtedly an abundance of respectable authority, the soundness of which we do not question, to the effect that a plea in abatement based upon the pendency of a former suit must show that the court in which it was brought had jurisdiction, to entertain the same. See, in this connection, 2 Estee’s PL & Pr. (4th ed.) § 3237, and cases cited in note; Carbolineum etc. Co. v. Meyer (Miss. 1899), 25 So. 297; Newell v. Newton, 10 Pick. 470.
Our Civil Code, § 5094, already cited, declares that, to be “ a good cause of abatement,” the former suit must be pending in the same or some .“ other court that has jurisdiction.” We may and do concede that this means jurisdiction to entertain the case; but the jurisdiction depends upon the plaintiff’s allegations of fact, and not upon the truth of those allegations. See Vanfleet, Collat. Attack, § 58, p. 71. From that work, § 60, pp. 73, 74,we extract the following: “Jurisdiction always depends upon the allegations, and never upon the facts.. When a party appears before a judicial tribunal and alleges that a certain right is denied him, and the law has given the tribunal the power to enforcehhat right —his adversary being notified,— it must proceed to determine the truth or falsity of his allegations. The truth of the allegations does not constitute the jurisdiction. The tribunal must have jurisdiction before it can take any adverse step. Its jurisdiction, necessarily, has to be determined from the allega
Again, it has been laid down that in no case “will a court inquire into the question of jurisdiction as to a case pending and undetermined in a court of general jurisdiction, legally competent to determine its own jurisdiction, and having acquired a prior defacto jurisdiction — a rule founded on comity and necessary to prevent injurious collisions.” Wells on Jurisdiction, §60, citing Ex parte Bushnell, 8 Ohio, 601. In point of fact, the court may not have jurisdiction of the person of the defendant; but he, if served, must respond and make this fact appear, or else he will be bound by the judgment which may be rendered against him. Until the question of jurisdiction is determined by the court having power to pass thereon, no other court should interfere. See Merriam v. Baker, 9 Minn. 40, which is directly in point upon our present question. It is true that Elandrau, J., did not concur in the judgment, but an examination of his dissenting opinion does not show that he differed from his colleagues on the proposition stated above. On the contrary, it would seem he thought that, upon the facts appearing, the alleged first suit was not really pending when the second one was begun. Referring once more to our Civil Code, § 5094, we think that an inevitable conclusion from the foregoing is, that the phrase, “if the first action is se defective that no recovery can possibly be had, the pendency of a former suit will not abate the action,” manifestly means that the first action must beso defective upon its face that a legal recovery can not be had thereon. The defendant’s plea in abatement made it distinctly appear that Mrs. Wilson’s action in Cobb superior court upon its face showed that that court had jurisdiction, and that, unless defended, this action was bound to be productive. Neither of her petitions disclosed as matter of law that no such jurisdiction existed, and it was cer
After the most careful research and deliberation we are free from doubt that the action in the city court was properly dismissed.
Judgment affirmed.