Buckles v. Chicago, M. & St. P. Ry. Co.

• Citation: 47 F. 424
• Court: U.S. District Court — Western District of Missouri
• Decision Date: 16 September 1891
• Parties: BUCKLES v. CHICAGO, M. & ST. P. RY. CO.

47 F. 424

BUCKLES v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, W.D. Missouri, Western Division.

September 16, 1891

Wm. M Burris, for plaintiff.

Pratt Ferry & Hagerman, for defendant.

PHILIPS J.

This is a motion to stay proceedings in this cause. It arises on the following state of the record and proofs: The plaintiff instituted action on the same cause of complaint-- an alleged tort-- against this defendant in the circuit court of Clay county, Mo. Issue was joined, and the case went to trial before a jury. After all the evidence was heard, and the court gave its instructions to the jury, the plaintiff took a nonsuit. There was a judgment against the plaintiff for the costs in that case, which have never been paid. Within the year from said nonsuit the plaintiff reinstituted the same action against the defendant in said circuit court. On application of the defendant this cause was removed into this court. On motion of defendant that plaintiff was ruled to give security for costs, which she has failed to give, but has suggested to the court that she would make application to sue as a poor person. The defendant has filed an intermediary motion to stay further proceedings by the plaintiff herein until she has paid the costs assessed against her in the Clay county circuit court. In the common-law courts of England the practice indicated by this motion arose out of ejectment proceedings, in which one recovery of judgment was not res judicata, but the same action might be renewed. As a measure of just protection to the party who was thus subjected to repeated litigations over the same cause of action, the courts, in the application of an equitable principle to a common-law proceeding, entertained motions to stay the prosecution of the second action until the plaintiff paid the costs adjudged in the first proceeding. In other forms and character of actions this rule was not formerly applied as a matter of course. In certain conditions it might work injustice and hardships; as in the action for assumpsit for debt, where the plaintiff might not have any other means out of which to pay the cost than the debt which the defendant wrongfully detained from him. Neither was this rule applied to the instance of a party whose body was taken in execution for the costs, as that was considered tantamount to payment for the purpose of the rule. 'But in actions of tort, for a malicious prosecution, or for a trespass, etc., the court will compel the plaintiff to pay the costs of a first action before he is allowed to proceed in a second for the same cause; and in actions for the recovery of debt, though they will not generally stay the proceedings in a second action until the costs of a former one are paid, yet of late years this has been done in several instances on the ground of vexation, and that, whether the action was in the same or different court.' 1 Tidd, Pr. (4th Amer.Ed.) 537, 538. In New York practice (2 Tiff.&S. 412,) it is said:

'Every court of justice has power to control its proceedings so as to prevent oppression between its suitors, and to this end a court will not permit a defendant to be harassed by a second suit for the same cause until the costs of a former suit have been paid. The practice of the court to stay proceedings in the second action, where the plaintiff has failed in a former action against the same defendant, for the same cause, until the costs of the former action be paid, originated in the action of ejectment; but it was afterwards extended to other forms of action, and the power is now exercised in all cases, and this form of relief is granted, although the former action was not tried upon the merits, but was discontinued, dismissed, or disposed of by judgment of nonsuit, or where there was a judgment on demurrer. * * * It makes no difference that the former action was pending in another court; the power has been exercised where the former suit was in a court of the United States.'

The text is fully supported by the following cases: Ripley v Benedict, 4 Cow. 19; Perkins v. Hinman, 19 Johns. 237; Taylor v. Vandervoort, 9 Wend. 449; Kentish v. Tatham, 6 Hill, 372; Jackson v. Carpenter, 3 Cow. 22. In Ex parte Stone, Id....