| Ky. Ct. App. | Feb 11, 1898
Lead Opinion
delivered the opinion op the court.
This action was brought by appellant for damages for $1,900 claimed for an injury. The petition was filed August 22, 1895.
Appellee filed an answer which develops the fact that this same appellant had theretofore brought an action for the identical same injury in the Jefferson Circuit Court, claiming damages in the sum of $5,000, and that this first case had on petition been transferred' to the United 'States Circuit Court by appellee., and that this suit, in the United States Circuit Court, at the date of filing the answer, was then pending and undetermined in the Circuit Court for the United States, for the district of Kentucky,- and at Louisi ville, Jefferson county.
There are other defenses plead in the answer, but as the case was determined by the court below, on the sufficiency of this plea in abatement, the other defenses plead need not be stated. To this plea of another suit pending, as well as to the whole answer, appellant replied. That part affecting this plea is an admission that at the date of filing the answer there was another suit pending in the United States Circuit Court, but same had been dismissed and is not now pending.
Appellee demurred to the third paragraph of appellant’s reply, being that portion that replies to the plea in abatement. The court, on a trial of this demurrer, sustained same, and appellant amended this paragraph of the reply,
The reply as amended, to which a demurrer was sustained, admitted that at the date of 'filing the plea in abatement, there was then existing and undetermined another suit for the same cause of action, in the United States Circuit Court for the district of Kentucky, which case was- -originally brought in the Jefferson Circuit Court, and by petition of appellee, transferred to the Federal Court.
The question presented is, was that a bar to this action?
It is conceded by counsel for appellant, in his brief, that if the United States Circuit Court for the district of Kentucky is to be treated as the -State circuit courts, or as domestic courts, that the plea in abatement as'filed, is sufficient, but on the other hand, contends that the Circuit Court of the United States, sitting for the district of Kentucky is to be treated as a foreign jurisdiction like the courts of the -other States, and that, therefore, the plea in abatement filed, is in itself insufficient.
'This question has never been passed on by this court, so far as we have been able to find.
In the case of Gordon v. Gilfoil, 99 U. S., 169, the Supreme Court of the United States, by Justice Bradley, after deciding that the action in the Federal Circuit Court was not the same as in a former action in the State Circuit Court, and overruling the plea in abatement, filed in the United States Circuit Court on that ground, proceeds:
“It may be proper here also to observe, although the point*168 was not pressed in the argument, that the exception to the jurisdiction to the circuit court is destitute of foundation. The suggestion was that as the proceedings in the order of seizure and sale were still pending in the district court, the debt could not be prosecuted in the circuit court of the United States. (But it has been frequently held that the pendency of a suit in a State court is no ground even for a plea in abatement to a suit upon the same matter in a Federal court. What effect the bringing of this suit, via ordinaria, may have had on the order of seizure and sale, it is not necessary to determine. It is possible that it superseded it. But the pendency of that proceeding, when the suit was commenced, can not affect the validity of the proceedings in this suit, nor the jurisdiction of the court in respect thereof.”
In the case of Pierce, etc., v. Feagans and Wife, 39 Federal Rep., 587, the United States Circuit Court for the Eastern 'district of Missouri, Thayer, J., says: “Again, the suit in the State court is pending in a different jurisdiction. It is now well settled that the pendency of a suit in a State Court can not be taken advantage of by way of a plea of Us pendens, to defeat a suit of the same nature, and between the same parties, in the Federal courts. The two courts, though not foreign to each other, belong to different jurisdictions in such sense, that the doctrine of Us pendens is mot applicable.” Citing Gordon v. Gilfoil, 99 U. S., 169; Stanton v. Embrey, 93 U. S., 554; Sharon v. Hill, 22 Fed. Rep., 28.
The case of Stanton v. Embrey, 93 U. S., 554, cited by Thayer, does not support his opinion. In that case the ac
In the case of Hughes v. Elsher, 5 Federal Reporter, 263, in the United States Circuit Court for the district of New 'Hampshire, the court, by Lowell, Ch. J., said:
“The pendency of the bill is pleaded in abatement. The plaintiff makes three objections to the plea, all of which must prevail. (1) It does not appear there is an action pending elsewhere. . . . (3) That the pendency of an action in a State court within this circuit is not ground for abating one in this court, is entirely settled by authority.”
In the case of Latham v. Chafee, 7 Federal Reporter, 520, before the United States Circuit Court for the district of Rhode Island, Colt, D. J., with Lowell, J., concurring, said: “The main question which arises upon the defendant’s plea is whether the pendency of a suit in a 'State court between the same parties, and involving the same subject matter, can be pleaded in abatement, or in bar, to a suit in the Circuit Court of the United States. It is undoubtedly true, as a genera» rule, that as between two courts of concur
In the. case of Sharon v. Hill, 22 Federal Rep., 28, in the Circuit Court of the United States for the district of California, Sawyer, J., says: “An alleged valid and subsisting contract is, therefore, the basis and cause of one suit; and forgery and fraud the basis and cause upon which the other rests. These, certainly, do not constitute the same causes of suit. The causes of suit are clearly not identical. It is also bad on another ground, that the suit set up is not pending in a court of the same jurisdiction. It is well settled by the Supreme Court of the United States that a suit pending in ■ another jurisdiction for the same cause can not be pleaded in abatement in a suit in the United States courts, and that the courts of the States and of the United States are courts of different jurisdictions. 93 U.S., 548" court="SCOTUS" date_filed="1877-01-22" href="https://app.midpage.ai/document/stanton-v-embrey-administrator-89406?utm_source=webapp" opinion_id="89406">93 U. S., 548-558; 99 U. S., 169-178. Here are two jurisdictions— jurisdictions of two distinct governments. One is State •jurisdiction, and the other is the jurisdiction of a national court. If it were a fact that a suit is pending for the same cause in the State court, a court of a different sovereign jurisdiction, it would not abate the suit here. The
In the case of Washburn & Moen Mfg. Co. v. Scutt & Co., 22 Fed. Rep., 710, in the Circuit Court of the United States for the Western district of Pennsylvania, Atcheson, J., said: “The jurisdiction of the Court of Common Pleas is contested on the ground that in the suit therein, service was made on a mere employe of the corporation, who, it would seem, is not an agent within the meaning of the State statute relating to service of judicial process upon corporations, but, should that court hold the service to be good, still the present plea could not prevail for several reasons. In the first place, Isaac L. Ellwood, a plaintiff here, and properly so, as it seems to me, is not a party to the suit in the common pleas. Again, the object of that suit is the rescission of the license contracts, whereas, the purpose of this suit is the enforcement thereof. Clearly, the relief here sought is not attainable in the former suit. . . . Finally, it has been held that the pendency of a prior suil m a State court is not a bar to a suit in a circuit court of the United States,' although between the same parties and for the same cause of action, 93 U.S., 548" court="SCOTUS" date_filed="1877-01-22" href="https://app.midpage.ai/document/stanton-v-embrey-administrator-89406?utm_source=webapp" opinion_id="89406">93 U. S., 548; 99 U.S., 168" court="SCOTUS" date_filed="1879-04-18" href="https://app.midpage.ai/document/gordon-v-gilfoil-89930?utm_source=webapp" opinion_id="89930">99 U. S., 168; 22 Fed. Rep., 28. The plea must therefore be overruled with leave to the defendant to answer within thirty days, and it is so ordered.”
In the case of Oneida Co. Bank v. Herrenden, 101 N.Y., 173" court="NY" date_filed="1886-01-19" href="https://app.midpage.ai/document/oneida-county-bk-v--bonney-3597748?utm_source=webapp" opinion_id="3597748">101 N. Y., 173 (4 N. E. Rep., 332), the Court of Appeals of New York held that an action begun in the State court and by one defendant, the only one before the court, transferred to the United States Circuit Court, could not be plead in abate
In the case of Kilpatrick v. Kansas City & B. Railroad, 38 Nebraska, 620, the Supreme Court of Nebraska approves, 99 U.S., 168" court="SCOTUS" date_filed="1879-04-18" href="https://app.midpage.ai/document/gordon-v-gilfoil-89930?utm_source=webapp" opinion_id="89930">99 U. S., 168, by saying: “The mere pendency in the courts of another jurisdiction of an action between the same parties,, and' concerning the same subject matter, can not be successfully pleaded in bar or abatement.” Citing 99 U.S., 168" court="SCOTUS" date_filed="1879-04-18" href="https://app.midpage.ai/document/gordon-v-gilfoil-89930?utm_source=webapp" opinion_id="89930">99 U. S., 168; 93 U.S., 548" court="SCOTUS" date_filed="1877-01-22" href="https://app.midpage.ai/document/stanton-v-embrey-administrator-89406?utm_source=webapp" opinion_id="89406">93 U. S., 548; 22 Fed. Rep., 28, supra.
• As to the converse of the proposition decided by the above' authorities, we find, that in the case of Earl v. Raymond, 4 McLean, 233" court="None" date_filed="1847-06-15" href="https://app.midpage.ai/document/earl-v-raymond-8630683?utm_source=webapp" opinion_id="8630683">4 McLean, 233, in the United States Circuit Court for the Seventh Circuit, Michigan, that court says: “That the pend-ency of a former suit, in a court having jurisdiction of the same, may be pleaded in abatement, is a principle well established. It is so held, to prevent a multiplicity of suits-being brought for the same cause. To tolerate the pendency of several suits, at the same time, for the same cause, would be a re-proach to the administration of justice. -Courts of justice were instituted to afford speedy, and effectual rem- • edie-s for the redress of wrongs, and not to afford a litigious person the means of oppression. ... It may be-laid down as a general rule of action for the Federal and State courts, that which ever Shall first take jurisdiction of a case, the jurisdiction of the other -may be defeated by a plea in abatement. And to avoid a conflict between the ¡ministerial officers of the Federal and State courts, the officer who first levies his execution, is entitled to a preference, the same as where both executions emanate from the State court or courts.”
In the case of Radford v. Folsom, 14 Fed. Rep., 97, in the Circuit Court for the United States, in Southern district of
Now, it is apparent that the cost 'and vexation caused to the defendant by the institution of the second suit is, to say the least, not lessened by the fact that it is brought in the Federal while the first is pending in the State tribunal. The
If it appears that the two proceedings, being between the same parties, and for the enforcement or protection of the same rights, will result in the granting of the same remedy, operative within the same territorial limits, then it would seem clear that the second is not needed to protect or enforce the plaintiff’s rights, and as the defendant must, of necessity, be put to additional trouble and expense in defending the second action, it follows that he is thereby vexatiously harassed and, in such case, he should be enabled to protect himself by causing the abatement of the second a'ction. It is the duty alike of the State and the United States Court to protect a defendant from unnecessary and vexatious litigation. If the first action is brought in the State and the second in the Federal tribunal or vice versa, it is the bringing of the second action that constitutes the oppressive and unnecessary act on part of plaintiff, and" the corrective should, be applied in the court whose jurisdiction is invoked oppressively and wrongfully. Again, the fact that one action is pending in the State and the second in the Federal court, instead of being a reason why the second should not be abated, is, on the contrary, a weighty argument for just the opposite conclusion; for, if the two proceedings are allowed to proceed at the same time, there may arise all the difficulties from a conflict between the two jurisdictions, acting “within the same State.”
The question here presented is an entirely new one in Ken
It will be noticed that in the case of Gordon v. Gilfoil, 99 U. S., 169, it was not necessary to a decision of that case to determine whether the Federal and State courts were foreign to each other, and consequently whether a plea of a former action pending in one court was sufficient in bar in the other court. The Supreme Court there expresses an opinion in that regard, but it could not be held to be authoritative.
The case of Stanton v. Embrey, 93 U. S., 554, though frequently cited in support of the doctrine that State and Federal courts are foreign, .so that a plea of a former action pending in one court is not good in the other, that case in our opinion does not so hold. The two courts compared ■were the Supreme Court of the District of Columbia, and a .court of the State of Connecticut. Not only a State and Federal court, buf sitting in entirely different jurisdictions, neither could enforce process within the other’s territory.
Upon these two cases, supra, the cases of Pierce v. Feagans and Wife, 39 Federal Rep., 587; Hughes v. Elsher, 5 Federal Rep., 263; Latham v. Chafee, 7 Federal Rep., 520; Sharon v. Hill, 22 Federal Rep., 28; Washburn & Moen Mfg. Co. v. Scutt & Co., 22 Federal Rep., 710, all in the Federal courts, and Kilpatrick v. Kansas City & B. Railroad, 38 Nebraska, 620, all depend for their authority and in no case do we find it reasoned out why it should be held that a State and Federal court are foreign to each other, so that a plea of ■ •a former action may not bar a subsequent action in the .other court. Án examination of all these cases shows that
It seems to us that the jurisdiction of the State courts and United States circuit courts held for the States and within the same State are domestic.
Can it be said that the act of Congress providing for removal of cases from the State to the Federal courts authorizes a transfer to a foreign jurisdiction? We think not.
Can it be said that the Federal court held a-t Louisville, Ky., is foreign in jurisdiction to the circuit courts sitting in Louisville, Ky.? The same laws are administered, the process of each court covers in part the same territory and the law expressly authorizes certain cases to be transferred from one court to the other. Most assuredly, they are not foreign.
It seems to us that the reasoning in Radford v. Folsom, 14 Fed. Rep., 97, supra, is unanswerable.
It appears that learned counsel for appellant conceded this to be true, in the court below. When the plea in abatement was filed, they did not demur, but treating that as sufficient in law, unless avoided, filed a reply.
This reply, in effect, admits that when the answer was filed there were two actions pending for the same cause, one in the United States Circuit Court, and the other in the State Circuit Court, and it was plead in avoidance of this plea of former action, that at that time, when the reply was filed, the action in the United States Circuit Court had been dismissed absolutely, and that there was then but one action.
Under the old rule of pleading, this reply was bad on de
We think this a more just and reasonable rule, and so hold to be the law, but we would not be understood as holding this to be inflexible and to be applied in all cases. The reason of the rule in the beginning that a plea of former action pending would abate the second action is just as good to-day as when the rule was adopted, i. e., that vexatious 'litigation would not be permitted, and if it appears that the second action was brought for the purposes of vexation, rather than to seek legal rights, the plea should be sustained. By permitting a reply to avoid the plea of a former action, the court ought to be able to ascertain the true reason of the second action, and if it appear vexatious, abate jt. In the case at bar it appears that appellant selected his forum to try his action, and that appellee, exercising his right, removed the case to the United States Circuit Court. Appellant then was given his election to' follow the case to the United' States Circuit Court or dismiss and again bring Ms action in the State court for less than $2,000. He chose the latter, but if he waited to dismiss before he
This election was had by a dismissal of the action where the larger sum in damages was claimed. It does not appear to have been vexatious.
For these reasons, we are of opinion that the demurrer to the reply to the plea of former action should have been overruled and the reply adjudged sufficient. Upon sustaining the demurrer to the reply, the court dismissed the action, which, following the former action, was error.
Wherefore, the judgment is reversed and cause remanded with directions to oven ule demurrer to the reply and for further proceedings, Judge DuRelle agreeing in reversal, but disagreeing on the reasoning.
Dissenting Opinion
delivered tiie following dissenting opinion:.
I concur with the opinion in this case in so far as it orders- a reversal upon the ground tnat on demurrer a replication -was good which set up the dismissal oif the suit in the Federal court subsequent to the plea in abatement; but I dissent from the opinion in so far as it holds that, in a suit in the State court, the pendency of a suit in the United 'States Circuit Court between the same parties, and concerning the same subject matter, pan be pleaded in abatement.
In my view, the courts of the State and of the United ■States, though sitting in the same district and having concurrent jurisdiction of the matter in controversy, are courts
’Without going into a discussion of the cases which are cited in the opinion of the majority, it is sufficient to say here that the earlier Federal court cases, the argument and reasoning of which are much relied on in the opinion, are overruled by the recent cases, and are in direct conflict with, the comparatively recent cases of Gordon v. Gilfoil, 99 U. S., 169, and Sharon v. Hill, 22 Fed. Rep., 28. Nor was the decision of that question in Gordon v. Gilfoil mere obiter dictum. 'The question was before the court, was presented, and, while the court decided the case upon two! grounds, the decision of the one was no more obiter than was that of the other. It is urged that, as the first point decided was decisive of the case, the decision of the other being unnecessary was mere dictum.- Applying the same reasoning to the opinion in this case, the decision (in which the whole court concurs), that a replication is good which alleges the dismissal of the suit in the other jurisdiction, being unnecessary to the decision of the case, which is accomplished by the decision of the point now under consideration, is mere obiter, and not binding authority.
Nor does the reasoning given in support of the earlier decisions to the. contrary .seem to be sound. A distinction»
The distinction seems to me to lie back of the argument urged. It is because the State and Federal tribunals are courts established by different sovereignties, and draw their pow’ers from a different source. And I think it unwise for the courts of this State to establish a different rule in this respect, applicable to cases in which the Federal jurisdiction has first attached, from that which has been established by the Federal courts (as appears from the authorities cited in the opinion), in cases where the priority in point of time is otherwise.