Hart v. Granger

1 Conn. 154

• Court: Supreme Court of Connecticut
• Decided: November 15, 1814
• Status: Published

Opinions

Ingersoll, J.

[after stating the principal facts.] As to the first matter alleged in the plea in abatement, to wit, that the service of the petition was void, inasmuch as the respondent, now defendant in error, was not an inhabitant of this state, and was but transiently in it, when the copy was left with him, I am clearly of opinion that it is unavailable. There is no difference as to the validity of such service, between suits at law and in chancery. As to suits at law, one mode of service is to leave a copy of the writ at the defendant’s usual place of abode, which by statute is good in every case where the defendant, at the time of service, belongs to this state. Another mode of service is to read the writ in the hearing of the defendant ; and this, if done by a proper officer, or by one properly authorized, is good service in all cases, as well where the defendant does not belong to this state as in those where he does belong to it. This is called personal service, and by the statute is good notice of the suit.

Originally, the General Assembly exercised all chancery jurisdiction; and it was enacted, that all petitions returnable to that forum should be served by leaving a copy of the petition with the respondent, or at his usual place of abode. When chancery jurisdiction was given to the superior and county courts, the same powers were given to these courts in all equity cases coming under their cognizance as had been exercised by the General Assembly in cases of the like kind. Petitions have uniformly been served in the same manner as those were which were returnable to the General Assembly. And never has there been a distinction as to service on the person of the defendant, whether he did or did not belong to the state. In an action at law, the writ must be read in the hearing of the defendant: In a petition in chancery, a copy must be left with him. In all cases this kind of service is good. When I speak of actions at law, I mean those in which the defendant is summoned only to answer to the suit.

I am of opinion also, that there is enough stated in the petition to warrant the interposition of the court. At any rate, I am not prepared to say, that a court of chancery can give no relief in such a case as is presented in the petition.

As to the third matter alleged by way of abatement, to wit, the bill in chancery, filed by the defendant in error against the plaintiffs, in the court of common pleas in the state of Ohio, and the proceedings thereon, and the operation of the same on the petition, there may be more of a question. On the one side, it has been argued, that this bill in chancery before the court in Ohio would have no operation on the petition at all: In the first place, because it appeared that neither the plaintiff nor the defendants were inhabitants of the state of Ohio, at the date of the bill and the service of the subpœnas, and at the time of plea pleaded ; that though the lands, the subject of the controversy, lay within the jurisdiction of the courts of Ohio, yet there was no prayer in the bill for a specific performance of the contract set forth in it, nor for any part of the lands, but for a recompense in money ; that of course, the whole of the proceedings before the court were coram non judice : But secondly, supposing for argument's sake, that these proceedings were not coram non judice, but were before a court of competent jurisdiction, yet that no advantage could be taken of this statement of the case by a plea in abatement; that in contracts containing mutual covenants there may be claims on each side, and consequently, that mutual suits may be sustained for enforcing such claims ; that one suit is never pleadable in abatement of another except where a plaintiff harasses a defendant with two suits for the same cause, matter and thing ; that it is pleadable only by a defendant where two suits for the same thing are brought against him, not where he has first brought a suit on a contract, and the plaintiff afterwards brings a suit on the same contract.

On the other side it was said, that the proceedings were not coram non judice, inasmuch as there was in the bill a general prayer for relief, and under this general prayer a decree might be made vesting these lands, or a part of them, in the defendant in error ; and whether the court could give relief in the precise mode specifically prayed for, was totally out of the question. Further, it was said, that though in some instances actions on a contract might be pending in favour of both parties, each against the other, at the same time, yet that this was not an universal rule : That in all cases where one action or suit will settle the rights of the parties, two are not sustainable ; and that the case under consideration is of this latter kind ; and if so, a former suit or bill is pleadable in abatement of a second on the ground of its being brought for the same matter, cause and thing.

Upon the best consideration I have been able to give to the question, I am of opinion that the proceedings before the court in Ohio are not coram non judice. It appears by the record, that that court has jurisdiction in chancery suits ; consequently, if there are proper parties before it, or rather if the plaintiff in that suit has a right to call the defendants before the court to answer his claim, and they are properly called, all the proceedings are as regular as if they had been before a court of chancery in this state. It matters not, I apprehend, as to the point of jurisdiction, whether or not a court of chancery can, beyond all question, give relief in the case stated in the bill. It is sufficient if application be made to such court for relief ; or, at any rate, if plausible grounds for relief are so stated. The present case no doubt is a proper one to be brought before a court of chancery ; and unless relief can be obtained in such court, it can be obtained no where. If there had been in the bill a prayer for a specific execution of the contract, by conveyance of the land, or any part of the land, this of itself would have given jurisdiction to the court, whether the parties lived out of the state of Ohio, or in it. This is a fixed principle in chancery, and has been fully adopted in this state. Indeed, by a statute law of this state

(a) all actions to try the title of land, or wherein the title of land is concerned, must be brought to a court in the county where the land lies. Nor is it necessary in cases of this kind that a court of chancery should have had authority to send any process of notification to the place or places where the defendant or defendants dwell. It will suffice to give them reasonable notice of the suit; such notice as the court shall direct. True it is, the courts of chancery in this state are authorized by statute(b) to give such notice to defendants being out of the state as they shall think proper. But I imagine this statute was passed ex abundanti cautelâ, and went upon the ground that the court had jurisdiction of the cause by means of the subject matter of the controversy (the land for instance) being within the limits of this state. This appeared to be an agreed principle in the argument of the cause, as the only objection made to the jurisdiction of the court was, that there was in the bill no specific prayer respecting the land, but that it was merely for a sum of money, which of itself would not give jurisdiction, circumstanced as the parties were. But this objection will vanish, if it be an established principle, that under the general prayer give such relief as is proper a specific execution of the contract as to the land can be decreed. And that this is an established principle, is a matter so plain, and occurs, and is acknowledged, so often, in daily practice, that I shall adduce no arguments to prove it.

But supposing for argument’s sake, that this principle is not so well established, yet, as has been observed, the case presented by the bill is properly a chancery case, apart from the circumstance of there being no specific relief prayed as to the land. The plaintiff in the bill says, he tendered to Hart and Mather performance of his part of a contract made by Kirkland his assignor, on the very day, and in the very place, designated by the contract did the performance of it; and that what he did was a literal performance of his part of the contract, except that the securities tendered were not made payable in Hartford; and that they were not so made payable was owing to his ignorance of the obligation he was under so to make them payable. He says further, that Hart and Mather availing themselves of this circumstance, refused, after the day, to receive securities from him, all made perfectly right, and to make an assignment of the scrip according to the terms of the contract, but chose rather to pocket the money they had received from him and his assignor as part of the consideration. Under these circumstances, he prays for relief. This, I say, is a proper case for the exercise of chancery jurisdiction, and whether or not a decree can be made respecting the land, yet if the court can adjudicate between the parties, the bill cannot be thrown out on the ground of being coram non judice. This, I think, is clear. The question then is, even supposing it necessary to give the defendants legal notice of the suit, whether the parties are so before the court, and the cause is of such a kind, as that this particular court can take cognizance of it.— There can be no difficulty about the cause, even going on the most narrow ground, inasmuch as the contract has reference to property within the jurisdiction of the court. It follows then of course, if the court can get hold of the defendants (if I may use the expression) ; that is to say, if the defandants are so within the jurisdiction of the court as that they ran be commanded in the subpœna to appear and answer to the bill, and if they are so commanded ; that the proceedings are not coram non judice. These principles being correct, if the subpœnas had been served on the defendants in the state of Ohio, the parties would have been properly before the court; or, at any rate, every thing requisite would have been done to give the court jurisdiction.

But it may be said, that the subpœnas in the present case were served on the defendants out of the jurisdiction of the court, and were inoperative as to giving it jurisdiction, inasmuch as the defendants could not be commanded to appear and answer to the bill ; that in fact they have never been legally notified of the suit. How the case would have been, (going on the ground that legal service of the subpœnas was necessary) if the defendants had taken no notice of the subpœnas, and never had gone before the court, it is unimportant to say, provided it appears by the record, as I think it does, that they have actually appeared, and have thereby given the court jurisdiction, as far as it was competent for them to do it.

I agree most fully, where the court has not on any ground jurisdiction of the cause, that no consent of parties will validate the proceedings. As for instance, no consent of parties can give a justice of the peace jurisdiction to try the title of land in an action of ejectment brought before him. No action to try the title of land lying in Hartford can by consent of parties be brought before a court in the New-Haven. But when the want of jurisdiction arises from want of notice to the defendant, by not serving the writ a sufficient number of days before the court, or from any other defect of service, this defect may be cured, and jurisdiction given, by the defendant's waiving every objection to the service of the writ, and voluntarily appearing before the court, and answering to the suit.

Before I apply these principles more particularly to the case under consideration it may be expedient to observe, in order to enforce the position that personal service of the subpœnas in the state of Ohio would have given the court jurisdiction, that the practice in this state is exactly conformable to this idea. It is the universal practice in this state, and may be said to be the common law of the state, to sustain jurisdiction of a cause where both parties belong out of the state, provided the defendant can be caught and service can be made on him here.

A few words more now with respect to the appearance of the defendants. The record shews, that they went before the court, and filed their motion for the removal of the cause to the circuit court, not at all objecting to the jurisdiction on the ground of a want of legal notice. This step of the defendants would alone, in my opinion, validate all the proceedings. But further, the record shows, that on this motion being overruled, there was a continuance of the cause. At the next court a demurrer is taken to the bill; and, to be sure, one cause of demurrer assigned is, that the court had not jurisdiction. It will be observed, however, that no exception is taken to the jurisdiction for want of legal notice.

This exception to the jurisdiction, if the proper ground had been assigned, I think comes too late; and besides, is improperly pleaded. A plea to the jurisdiction must be the first plea, and must be mixed with nothing else. Clear I am, therefore, that the proceedings in the court in Ohio are not coram non judice.

As to the operation of the proceedings, going on the ground that they are regular, and that the court in Ohio has jurisdiction of the cause, I had some doubt before the argument was closed. I was doubtful whether any other advantage could be taken of those proceedings than by moving for a continuance of the petition on which this writ of error is brought till a trial could be had of the bill in chancery in the state of Ohio. But on the whole, I have come to this conclusion, and with little or no doubt now remaining, that the plea in abatement grounded on the aforesaid proceedings, was well put in, and that the judgment of the court below on the same was right. I will not say, if the bill had been filed by the defendant in error before the court in Middlesex county, that the plea would have been available. Perhaps the petition in such case might have been considered as a cross-bill, and both petition and bill have been tried together. Whenever both processes are before the same court, there is no danger of injustice being done, or of hardship taking place, by trying the last process in point of time, first. Cases there may be indeed, where processes in favour of both parties may and ought to subsist at the same time. All cases of mutual covenants, where one covenant is the consideration of the other, are of this sort. So also are actions of book-debt, where a balance is claimed by both parties. A defendant in an action of book-debt may not only claim a balance to be due to him, but may want to secure it by attachment. For this purpose, it is competent for him to bring an action pending the plaintiff's suit. In short, whenever the determination of the plaintiff’s suit will not put an end to the controversy, the defendant may bring an action on the same contract. But, as a general principle, if the determination of the suit first commenced will determine the whole controversy, the first is pleadable in abatement of the last ; at any rate, it is so, if the suits be not in the same court. I know not, indeed, that it would make any difference at law, if they were both in the same court. It rather strikes me, that in chancery, as the court could easily try them both together, and settle at once all the controversies between the parties, the suits would stand on the ground the bill and cross-bill. But if the suits be before different courts, one court would have no controul over the proceedings of the other, and unless a plea in abatement were allowed, as above stated, manifest injustice might be done, by trying the last suit brought, first. This would he inequitable, inasmuch as the plaintiff who first brings a suit gains, and ought to gain, a priority thereby ; and when the rights of the parties can be settled in this suit, he ought not to be harassed with a suit before another court in favour of the defendant.

Again, to test the principle that in such a case the first bill ought to abate the second, let us see what operation a judgment on the first suit would have on the second. If a judgment on the first bill would settle all the rights of the parties, it could unquestionably be pleaded in bar of the second, and would be available to bar all proceedings on it. This proposition certainly is very clear, and needs no argument to prove the truth of it. It seems to me, then, to follow conclusively, that a first process conclusively would abate a second.

It remains now but to consider whether a determination of the suit before the court in the state of Ohio, let it be either way, would not be conclusive as to every thing contained in the petition of the plaintiffs in error. The general ground stated for bringing the petition is, that the defendant in error will not bring a suit against them to try the question whether they are liable to him on the contract; and notwithstanding this, that he will not give it up to be cancelled. But the fact is, he had, at the very time, brought his suit to enforce the contract; and therefore, on this ground there could be no need of bringing the petition. They go on further to pray the court to order the defendant in error to deliver up to them the contract to be cancelled without any thing being done on their part, or if it should be supposed that in equity they are still holden on it, to give such relief as the case should require, and on such terms as the court should think proper. The drift of the petition, therefore, is, for the court to determine whether it is in any sense binding on them ; and if so, in what manner, and on what terms, it shall be performed. This is the ground stated in the petition for the court to proceed upon; and it as clear to me as any proposition that can be stated, that a decision on the bill of the defendant in error will take away this and every other ground on which the petition can stand. If the court in Ohio should grant relief to the defendant in error on his bill, this would be conclusive as to any redress the plaintiffs in error could have on the contract. They could not have it delivered up to them to be cancelled, nor could the court below give any relief, or prescribe any terms for giving relief to either of the parties. Such a decision on the bill would end the controversy. If, however, the determination should be against the defendant in error ; in such case, the plaintiffs would obtain exactly what they wash. This judgment would protect them from all future suits on the contract, and there would be no need of its being delivered up.

In every point of view, the case must be with the defendant in error ; and I think the judgment ought to be affirmed.

In this opinion Swift, Trumbull, Brainard and Baldwin, Js. severally concurred. Reeve, Ch. J. and Smith, J. dissented.

Tit. 6. c. 1. s. 6.

Tit. 42. c. 30.