Marshall v. Otto

59 F. 249, 1893 U.S. App. LEXIS 2953

• Court: U.S. Circuit Court for the District of Nevada
• Decided: December 11, 1893
• Docket: No. 572
• Status: Published

Opinion

HAWLEY, District Judge,

(after stating the facts.) 1. As to the pleas. The defendants, by answering to the merits, have waived their right to rely upon their plea in abatement. It is a well-settled rule of practice in the national courts that matters in abatement can, in general, only be set up by plea or demurrer, and that a defendant, by answering, waives any such objection. 1 Fost. Fed. Pr. § 125, and authorities there cited; Story, Eq. Pl. § 708; Livingston v. Story, 11 Pet. 393; Wickliffe v. Owings, 17 How. 51; Pierce v. Feagans, 39 Fed. 588. Rule 9 of this court is conclusive upon this question:

“All matters in abatement shall be set up in a separate preliminary answer, in the nature of a plea in abatement, to which the plaintiff may reply or demur; and the issue so joined shall be determined by the court before the matters in bar are pleaded. And when any matter in abatement, other than such as affects the jurisdiction of the court, shall be pleaded in the same answer with matter in bar, or to the merits, or simultaneously with an answer of matter in bar, or to the merits, the matters so pleaded in abatement shall be deemed to be waived.”

The pendency of a prior suit in a state court cannot be pleaded in bar of a suit in the circuit court of the United States, even if it is for the same cause of action. The two courts, though not foreign to each other, belong to different jurisdictions in such sense that the doctrine of the pendency of the suit is not applicable. This rule is now almost universally applied in all cases where the pendency of the prior suit is in another state or district from that in which the national court is held. Sharon v. Hill, 22 Fed. 28; Washburn & Moen Manuf’g Co. v. H. B. Scutt & Co., Id. 710; Pierce v. Feagans, 39 Fed. 588; Rawitzer v. Wyatt, 40 Fed. 609; Stanton v. Embry, 93 U. S. 554; Gordon v. Gilfoil, 99 U. S. 178; 1 Fost. Fed. Pr. § 129.

But if the pleas in abatement and in bar were properly before the court upon their merits, they could not be sustained, because the causes of action and the parties thereto are different. The suit in Placer county was for a money demand against M. E. Spooner. The suit in Lassen county was to foreclose a mortgage upon real and personal property. This is a suit in the nature of replevin, to recover the possession of certain personal property which it is claimed was wrongfully taken from the possession of the pledge holder, who was acting under and by virtue of the appointment by M. E. Spooner and the Bullion & Exchange Bank, and for the value of said personal property in case delivery of possession could not be had, and damages for the detention thereof. It is true that the debt due from M. E. Spooner to the bank constitutes the foundation of all the suits; but the causes of action are not the same. The suit in Placer county was improperly brought, and could not •have been sustained. The judgment of dismissal, as first entered, "each of the parties hereto paying his own costs,” might, under the rule announced in Merritt v. Campbell, 47 Cal. 542, have amounted to a retraxit, and, if it had not been amended, it could have been pleaded in bar to another suit afterwards brought in another court of the same state, upon the same cause of action. But the plaintiff therein, upon being informed of the terms of the judgment, moved the court to amend it so as to conform to the intention of the parties, and it was amended so that the final judgment of dismissal reads: “It is therefore ordered, adjudged, and decreed fcha t the above action be, and the same is hereby, dismissed.” This entry shows upon its face that the judgment of dismissal was not the result of an adjustment of the subject-matter in controversy in that suit, and takes the case out of the rule announced in Merritt v. Campbell, which was based upon the ground that each party was adjudged to pay his own costs; and, for obvious reasons, the doctrine as therein set forth ought not to be extended beyond the limits fixed by that authoritv. Landregan v. Peppin, 94 Cal. 465, 29 Pac. 771.

The pendency of the foreclosure suit in the superior court of Lassen county constitutes no bar to the prosecution of this action. Any judgment that may be rendered in this case will not in any manner interfere with any judgment that has been, or may hereafter be, rendered in that case. They are entirely different causes of action, and each suit has its own appropriate remedy. If the defendants have wrongfully taken the possession of the property from the plaintiffs, they can be required to restore the possession thereof to the plaintiffs, so that it may be retained by them, to abide any judgment that may finally be rendered in the foreclosure suit; and, if possession of the property cannot be given, the plaintiffs would be entitled to recover the value thereof; otherwise, the foreclosure of the mortgage, if eventually ordered in the superior court, might become an absolute nullity by the wrongful act of tlie defendants in this action, and plaintiffs might be left entirely remediless in the premises. The defendants acquired their rights, if any they have, in the premises, subsequent to the commencement of the foreclosure suit, and, if they rightfully obtained the possession of the property, they are entitled to a judgment in their favor for the costs.

2. As to the merits. It appearing to the satisfaction of the court, from the evidence submitted in this case, that the pledge holder took the possession of the property with the consent and written authority of the parties to the chattel mortgage, it follows that unless the plaintiffs, by some act of theirs, have legally parted with the possession thereof, or done some act which legally deprived them of the possession and right of possession thereto, they are entitled to recover in this action. It is earnestly contended by defendants that the issuance of the writ of attachment in the Placer county suit, and levying the same upon the property, amounted to a waiver and abandonment of the possession of the pledge holder, and deprives the bank of any lien or right of possession which the plaintiffs might previously have had to the property. It is also claimed that the fact of the bank’s consenting to the levy of the attachment in Munro v. Spooner had the same effect. It is further asserted that Mrs. Clara Spooner rightfully obtained the possession of the personal property by the order of the court discharging the receiver in the foreclosure suit, and directing him to deliver the personal property to her. In determining the effect of these proceedings, in connection with other minor matters discussed by counsel, the position in which the various parties stand, in relation to the property -and of their rights, claims, and interest therein, must be clearly and constantly kept in view, for every case must stand or fall upon its own particular facts. There is no dispute as to the fact that M. E. Spooner is indebted to the bank. It was asserted by defendant’s counsel in the oral argument that the debt is not yet due, and that the foreclosure suit was prematurely brought; but in this connection he said that, when the debt became due, it would be paid; but be that as it may, for the question Avhether the debt is due or not, or whether it wiil finally be paid, is not involved in this case. Tin; question here is whether the plaintiffs in this action are entitled to the possession of the personal property. In deciding this question, the primary fact is the existence of the debt of M. E. Spooner to the bank. The particular amount of the debt is not involved. The next important question is the fact that neither Mrs. Clara Spooner nor the defendants, Otto & Healey, were creditors of M. E. Spooner, nor were they innocent purchasers, for value, of the property. They are not entitled to any rights, and are not in a position to claim any privileges, that could not be asserted and maintained by M. E. Spooner. They stand in his shoes.

It may be conceded, for the purposes of this case, that the conduct and action of the bank, as above stated, were such as to prevent it from asserting any claim, or lien, or right of possession to the property as against creditors of M. E. Spooner, or innocent purchasers for value, Avho had obtained any claim or rights to the property. To such effect are the authorities of Citizens’ Bank v. Dows, 65 Iowa, 460, 27 N. W. 459; Wingard v. Banning, 39 Cal. 543; and other authorities cited by defendants. But the facts of this case take it out of the rule announced in such cases.

Would M. E. Spooner be entitled to claim and hold the property? Could M. E. Spooner claim that the levying of the attachments upon the personal property defeated the lien and right of possession of plaintiffs? The affidavit for the attachment in the suit of Bank v. Spooner was not based upon the ground that the plaintiffs in the suit had no lien upon real or personal property, but it was procured upon the ground that the defendant was a nonresident of the state of California. The commencement of the Placer county suit was wholly unwarranted in law, unauthorized by the facts, and cannot be justified upon any ground. Counsel, in bringing that suit, evidently misconceived the- remedy which the plaintiffs were entitled to, and thereafter sought to rectify the mistake by procuring a dismissal of the case. But a party who imagines he has two or more remedies, or who misconceives his rights, is not to be deprived of all remedy because he first tries a wrong one. Peters v. Ballistier, 3 Pick. 505; notes to Fowler v. Bank, [21 N. E. 172,] 10 Amer. St. Rep. 488; Bunch v. Grave, 111 Ind. 357, 12 N. E. 514. Mr. Coffin testified that he was induced to institute the suit, and to cause the levy of the attachment, upon information which he at the time believed to be reliable, to tbe effect that Mrs. Spooner had wrongfully obtained tbe possession of tbe property from the custody of the pledge holder, and was attempting to remove the same from the state of California, and that the object of bringing the suit was to prevent such action on her part, and enable tbe bank to regain the possession of the property so as to subject it to tbe lien of the chattel mortgage. The evidence shows that the suit would not have been brought except for tbe steps taken by M. E. Spooner in conveying the property to his wife, and her action in endeavoring to remove the pledge holder from the possession of the property, and to obtain possession of tbe same. Tbe bringing of the suit and tbe levy of tbe attachment were not tbe result of the voluntary action of tbe bank, but were caused by the wrong' ful act of the mortgagor and pledgor of the personal property, and he is not in a position to take any advantage of such proceedings upon the part of the bank; this, upon the familiar principle that a party cannot take advantage of his own wrong in order to relieve himself from the payment of a just debt. The general principles herein announced are as applicable, in my opinion, to tbe case of Munro v. Spooner, as to tbe case of tbe bank, although the facts are somewhat different.

The order of the court in the foreclosure suit, directing the receiver to deliver the property to Mrs. Clara Spooner, cannot be considered as an adjudication of the rights of the parties to the possession of the property. If her possession was wrongful, the restoring the possession to her in that manner did not make it rightful. The fact of the appointment of the receiver did not, of itself,, determine that the bank was entitled to tbe possession, -and the fact that tbe receiver was discharged does not, of itself, determine that the bank was not entitled to tbe possession. The appointment of tbe receiver might have been wrongfully obtained, although the bank was lawfully entitled to tbe possession of the property, and the order discharging the receiver might have been properly made, on the ground that his appointment was irregularly or wrongfully obtained, without in any manner determining who was legally entitled to the possession of the property. In Von Roun v. Superior Court, 58 Cal. 358, the court said:

“The appointment of a receiver works no injury to the least right of any one. It would he strange if it did. The receiver is the hand of the law, and the law conserves and enforces rights; never destroys them. His ap-1 X>ointment determines no right, and in no way affects the title of any party to the property in litigation.”

See, also, 3 Pom. Eq. Jur. § 1336. The views herein expressed dispose of all the objections raised against the right of the plaintiffs to recover in this action.

The only question' remaining is as to the right of plaintiffs to recover the hay and grain upon the Spooner ranch. The testimony was to the effect that it was orally. agreed between. the parties that the pledge holder should take possession of the hay and grain; but in weighing the testimony it seems only to go to the extent of authorizing the possession of the hay and grain for the purpose of feeding the stock, (horses and cattle.) It is doubtful whether this testimony was admissible for any purpose. Under all the facts of this case, the judgment will be confined to the personal property mentioned in the agreement appointing the pledge holder.

While some of the parties who are interested in the disposition of this case have been wrangling over the possession of the property, and others have been bitterly engaged in much unnecessary litigation, the cattle in controversy, brute creatures as they are, have been pursuing a much better course, and perhaps setting all the parties a good example, by quietly chewing the cud of peace, and all the stock, in a more compromising spirit than has so far been evinced by any of the parties, has been peacefully eating the hay and grain, and has had the benefit of at least a portion thereof. The plaintiffs are entitled to recover the possession of the horses and cattle, and, if recovery cannot be had, they are entitled to recover the value thereof, to wit, the sum of $6,312, and the costs of this suit.

The clerk will enter judgment accordingly.