O'Brien v. Circuit Judge

1 McGrath 537, 106 McGrath 42

• Court: Michigan Supreme Court
• Decided: July 2, 1895
• Docket: No. 14920
• Status: Published

Opinion

To set aside an order overruling a plea of a former suit pending.

Granted July 2, 1895, with costs against Turnbull.

February 6, 1895, one Rothschild filed a bill in the Wayne Circuit making the relator, J. D. Turnbull and Wm. Monaghan parties defendant, and asking petitioner to account for moneys received by him as trustee upon a certain judgment. Subpoenas were issued and served.

On February 28, 1893, Turnbull filed a bill in tbe Alpena Circuit against Rothschild and relator, seeking a personal decree againsa relator and involving a like accounting. In the latter case relator interposed the plea of a former suit pending.

Relator insists that the order overruling the plea is not an appeal-able order; that relator’s remedy is by mandamus; Kirchner vs. Wood, 48 M., 199; Barnum W. & I. Wks. vs. Circuit Judge, 59 Mich., 272 (825); that a plea of former suit pending is a good plea if both courts are in the same general jurisdiction and the suits in each are in a court of equity, 1 Danl. Ch. Pr., 632-633; Claywell vs. Sudderth, 77 N. C., 287; Boun vs. White, 24 Hun, 45; that such plea is good although the parties are not identical, if substantially the same, and the matter can be litigated in the first suit as completely as in the second. 1 Danl. Ch. Pr., 635; Gray vs. R. R. Co., 77 U. C., 299; Crane vs. Larren, 15 Oregon, 345; Rowley vs. Williams, 5 Wis., 151; that as no issue was taken with relator’s plea, the latter is admitted to be true, Chancery Rule No. 25; 1 Danl. Ch. Pr., 636-637.