Hatch v. Spofford

22 Conn. 485

• Court: Supreme Court of Connecticut
• Decided: July 15, 1852
• Status: Published

Opinion

Ellsworth, J.

The defendant’s plea in abatement states,

that the plaintiff and defendant are inhabitants of the city of New York,—that the plaintiff has there instituted and is prosecuting a suit against the defendant, in a court of chancery, for the same matter, cause, and thing,—that the defendant has there appeared, filed his answer, and submitted to the jurisdiction of the court,—that the court has full jurisdiction to adjudge the matter, and its judgment will be a conclusive bar to the controversy. To this plea, the defendant has filed a demurrer, and thereby admits the truth of the allegations, at least for the purpose of trying the demurrer.

The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at the common law, good cause of abatement. It is so, because there can not be any reason or necessity for bringing the second ; and, therefore, it must be oppressive and vexatious. But while the law is thus careful to screen the defendant from oppression and vexation, it is equally impartial and open to the plaintiff, and I may say, even indulgent, in permitting him, a creditor, to seek redress, by pursuing several remedies at the same time, if this is found to be reasonable and necessary. It will not countenance vexation and oppression, neither will it prevent a creditor from Using, in a fair manner, the means in his power to collect his debts.

Now, the plea of a prior suit is to be looked at, in just this impartial view. The rule above stated is not a rule of unbending rigor, nor of universal application, nor a principle of absolute law,—it is rather a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. It should be remembered, that a dilatory plea is not' like a plea of pay ment, or satisfaction-, or of something in bar of the merits of the claim; then it would find more favor; but its object is to cause postponement and delay,—and the language of the plea is, the proceeding is unnecessary and vexatious, and should be abated.

It is obvious then, a second suit is not, of course, to be abated and dismissed as vexatious, but all the attending circumstances are to be first carefully,considered, and the true question will be, what is the aim of the plaintiff? Is it fair and just, or is it oppressive ? It is possible the defendant may not owe the debt, as the plaintiff claims he does, and may want only to present his defence, in a manner as little expensive and inconvenient as possible,—which right he ought certainly to enjoy ; but his plea now is, for delay, and delay only. If the plaintiff, by a second suit, can place his claim in a more favorable condition for obtaining redress, why should he not be permitted to do it ? as where he can secure his debt by an attachment, his first suit being a summons,—or where, as in Ward against Curtiss, the first suit is found to be premature ; so where he is apprehensive that, by reason of error or misapprehension, he is not in as good a condition as he could place himself in, by a second suit. What reason can be assigned, why he may not pursue his best remedy ?

The court will not be reluctant to grant him any necessary aid ; nor is a defaulting debtor a favorite of the court, to be shielded from a fair and speedy trial, in any competent court, where the debtor can be summoned to appear.

The only certain rule on this subject, which we find, is, where the parties are the same and the second suit is for the same matter, cause and thing, or the same object is to be attained, as in the first suit and in the same jurisdiction, the second shall abate and be dismissed; and no case beyond this, can be found, except perhaps Hart v. Granger, 1 Conn. R., 154, which extends the rule to suits pending in different and independent jurisdictions,—nor to cases pending in the same jurisdiction, in a court of law and in a court of equity. These last qualifications are, in our judgment, most material to the case on trial, and are, we think, decisive of the merits of the plea in abatement. No case has been cited by defendant’s counsel, (and his elaborate researches would have found them, if in the books,) of a bill in equity, pleaded in abatement to an action at law, or vice versa, even though the general object of both suits be, the attainment of the same object; which is allowing to this defendant, quite as much as the facts in his plea will justify; for the bill in equity is by one partner against the other, not only to settle his account but to close up the partnership, while the action at law is on a covenant to render Ms account. In Laflin v. Brown, 7 Met., 676, the court say, “ The pendency of a bill in equity has not usually been considered sufficient ground for sustaining a plea in abatement; but when both suits are commenced by the same party, it may furnish a proper occasion for a motion to require the party to elect in which action he will first proceed;” so in Blanchard v. Stone, 16 Vermont R., 234, it is said by the court, “ A plea in abatement to an action at law, on the ground of a pendency of a bill in equity for the same .matter, between the same parties, in another court, it is believed, has never been sustained in any court, foreign or domestic.” There is very much in the peculiar nature and extent of the jurisdiction of these different courts, to sustain this exception to the general rule. Besides, the rules of procedure and manner of execution in these courts, are not alike; so a court of equity acts or not, in many cases, according to its discretion; it not unfrequently leaves the party to his remedy at law ; it prescribes conditions, causes new parties to be brought before the court, and combines new matter, in any stage of the trial, by supplemental, or by cross bills, and often protracts a case, otherwise easily disposed of, for a long period of time,—equity acts likewise, without a jury, and in most countries, upon evidence taken in writing, by masters in chancery, and it has a wide discretion, which it is generally found necessary to call into exercise, in winding up a partnership connection. It is true, the demurrer in this case admits, that this action at law will be settled by the judgment in the suit in New York; but this is, as before said, an admission, to try the demurrer,—the general question remains as before.

But, if we are mistaken in this limitation of the general rule, there is another which is not less obvious and decisive, viz., the suits must be pending in the same jurisdiction. This has long been the law in England, as established in the cases of Maule and another v. Murray and another, 7 Term R., 466, and Imlay v. Ellefsen, 2 East, 457, and Ostell v. Lepage, 10 Eng. L. & Eq., 255. In the first, the court adopt this language, “ This court will not take judicial notice of an arrest in a foreign countryadding, “ it would be unjust to deprive the plaintiffs of perhaps the only security they have, for the payment of their debtand, in the second, Lord Ellenborough, Ch. J., in giving the opinion of the court, which turned on this very point, says, “ We do not see but the plaintiff has the same security, (by a suit in Norway,) for his demand, and all the benefit of prosecuting his suit there, which he has hére ; and as we do not see that such is the case, we do not feel ourselves warranted in taking from him, the benefit he is entitled to, from the laws of this country. So in Bayley v. Edwards, 3 Swanston, 710, which was a suit in Jamaica, a plea in abatement was filed, setting forth a prior suit then pending in England ; the court in England, on appeal from the colonial court, held, the plea was insufficient. Lord Camden said, “ It is impossible to maintain this plea,—it is a plea to the jurisdiction. The plaintiffs in England, attempt to set up the suit here, in bar of the jurisdiction of Jamaica; but the causes for allowing the plea of double suits, are all where the suits are in court here, while this is a second suit, in a court which is a foreign court.” The same is the law in the United States. It was so held in 11 N. H., 88. Bowne & Seymour v. Joy, 9 Johns., 221. Walsh v. Durkin, 12 Johns., 101. Mitchell v. Bunch, 2 Paige, 620. Newell v. Newton, 10 Pick., 472, and Colt v. Partridge, 7 Met., 574. If the case of Hart et al v. Granger is held to contain different views, and can not be distinguished from the above cases, by reason of its peculiar circumstances, the land lying in Ohio, or as proceeding upon the idea that these states are not foreign states, which was not decided until afterwards, in the supreme court of the United States, Buckner & Finley v. Van Lear, 2 Pet., 586, we can not approve of it. If there were nothing else in the case, but the fact, that the plaintiffs (citizens of Connecticut) were defendants in the suit in Ohio, and, of necessity, subject to a withdrawal of that suit, by the plaintiff, this was enough to justify the plaintiffs in getting the contract at once cancelled, if they could, as they found the plaintiff within our jurisdiction. It can not be supposed that they were under the necessity of going to Ohio, in order to obtain redress, when the plaintiff could, at his pleasure, leave the present plaintiffs remediless, by suffering a non-suit.- It is quite possible, if these plaintiffs had then filed a cross-bill, they could then have secured the relief which they were seeking, and to which they were entitled, upon their hypothesis ; but they were not obliged to submit to such> proceedings, and it might not have been expedient for them to trust their case to the decision, and a final one perhaps, of a county court of Ohio; for they had tried in vain to remove the case-into the United States court.

The counsel for the defendant insists, that, although these states are foreign states, except for federal purposes, the constitution of the United States has provided, that full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state, and that this provision in the constitution makes these states domestic states, or, at least, that their judicial proceedings are to be held as if they were; because they are conclusive and final; and then, he insists, that the general principle, already commented upon, shall be applied. We think it is not so, although we fully assent to the conclusiveness of the proceedings specified in the constitution ; but the want of this conclusiveness is not the reason assigned, why a prior suit, in a foreign jurisdiction, shall not abate another. It is not sosaid in Maul et al. v. Murray et al., or Imlay v. Ellesfen, or Bailey v. Edwards, nor in the cases in this country ; although some of the latter were decided after the decision in Buchner & Finley v. Van Lear. And although the earliest cáse in New York, was prior to Buchner & Finley v. Van Lear, yet we think the same view of our national compact had prevailed from the first. Judge Van Ness, it is true, in Miller v. Hackley, 5 Johns., 375, did hold, that a bill drawn on a person in another state, was not a foreign bill, but it does not appear, this was the point of the case, or that the question was argued or examined. Excepting this remark, we think, the decision in Buckner & Finley v. Van Lear, involved nothing essentially new. Such are the cases of Warder v. Arrel, 2 Wash., 298, Hitchcock v. Aiken, 1 Cai., 460, Bartlett v. Knight, 1 Mass , 430, and cases in note ; Duncan v. Course, 1 South Carolina Constitutional R., 100, 3 Kent, 93. The true reason is, every country or state is entirely sovereign and unrestripted in its powers, whether legislative, judicial, or executive, and hence, does not acknowledge the right of any other nation, to hinder its own sovereign acts and proceedings. Nor will the courts of one country take notice of the courts of another, nor of its laws, or rules for the administration of justice ; and therefore, the courts of a country, where a second suit is brought, will not dismiss a suitor, merely because initiatory steps have been taken elsewhere. It may bé cause for staying proceedings : but, to abate a suit is to put a final end to its existence ; should it do this, it might learn, too late, that no adequate remedy can be had elsewhere. That country is undutiful and unfaithful to its citizens, which sends them out of its jurisdiction, to seek justice elsewhere. We need not repeat, that, from necessity, it does not know what is practicable in a foreign jurisdiction,—what the mode of trial there,—the rules of evidence,—the statutes of limitation, or wHat the kind of judgment and satisfaction, and whether, if satisfaction is to be had at all, it may not be, on terms prescribed by laws favoring chiefly the interests of the debtor. This is so, even in some of these states; bow much more may it be so in other states and countries. Besides, the expense, uncertainty and delay, incident to a trial abroad, perhaps in a country very remote, is, one would think, cause enough for prosecuting a suit at íiome. The creditor, having been obliged to sue the debtor abroad, because he was found there, and could be sued nowhere else, should not be denied the right to sue his debtor at home. In truth, to do this, in such a case, is not unnecessary and vexatious ; for it is what the most upright and scrupulous man would do, without hesitation.

As we have said, the defendant’s counsel endeavors to distinguish this case, from those cited from the English reports, in this,—that the judgment in New York will be final and conclusive ; which, he says, is not the case with the foreign judgment; and this is the point he has most labored ; for, he does not deny, that the English law is against his defence, if it is to apply. Now, we remark, it is by no means clear, whether a judgment fairly obtained in the court of a foreign country, (the court having jurisdiction of the subject matter and the parties,) is not conclusive elsewhere. This is a disputed point. If then, it is conclusive, the entire force of the argument is taken away. It is undoubtedly so, in all proceedings in rem, and there is very high authority that it is so, in actions in personam. Mr. Greenleaf, in his treatise on Evidence, 1 vol. sec."546, closes his remarks on the cases, by saying, “ Though there remains no inconsiderable diversity of opinion among the learned judges of the different tribunals, yet the present inclination of the English courts seems to be, to sustain the conclusiveness of foreign judgmentand Judge Story says, in his Conflict of Laws, sec. 545,550,605. “ It is indeed very difficult to perceive what could be done, if a different doctrine were maintainable to the full extent of opening all the evidence, and merits of the cause anew.” fs the court to review the former decision, like a court of appeal, upon the old evidence; or is the court to open the judgment, and proceed as at first, ex equo et bono ? The rule, that the judgment is to be prima facie evidence for the plaintiff, would be a mere delusion, if the defendant might still question it, by opening all or any of the original merits, on his side, for it would be equivalent to granting a new trial. The very latest ease we have seen, is the Bank of Australia v. Nias, in Queen’s Bench, 4 Eng. L. & Eq., 252, where the court most evidently inclined to hold a foreign judgment to be conclusive, if the court had jurisdiction, and the trial, was fairly conducted; but they held it unnecessary to decide the point absolutely, because the judgment which had been rendered in Australia, a colony, had been appealed from, to the Queen’s privy council. Lord Denman, in Furguson v. Mahon, 39 E. C. L. R., 39, and more emphatically in Henderson v. Henderson, 6 Queen’s Bench, 288, says, “ That a plea to an action on the judgment of a colonial court, ought to steer clear of any inquiry iiffo the merits of the case ; for whatever constituted a defence, in that court, ought to have been pleaded there.”

There are, undoubtedly, many dicta, that a foreign judgment may be overhauled, on its merits, and is only grima facie evidence of the debt. It does not appear, however, says Lord Campbell, Ch. J., that the question has ever been solemnly decided, where the foreign court has regularly adjudicated the matter between the parties. It is open, no doubt, to the defendant, to show, the foreign court had not jurisdiction of the subject matter, or the person, or that the defendants had not a fair trial. Perhaps it is in view of these exceptions, it has been said that such a judgment is only grima facie evidence, and maybe impeached. We will not, however, pursue the subject any further; the numerous authorities on the subject are collected and ably commented on, by Judge Story, in his “ Conflict of Laws,” and by Smith, in his Leading Cases, 2 vol., 499. Most of them are likewise collected in Greenleaf’s Evidence, and in Cowen’s Notes to Pfiilipps. For these reasons, we advise judgment to be rendered for the plaintiff.

In this opinion, the other judges concurred.

Judgment to be rendered for the plaintiff.