Consol. Ordnance Co. v. Marsh

• Decision Date: 25 May 1917
• Citation: 116 N.E. 394,227 Mass. 15
• Parties: CONSOLIDATED ORDNANCE CO. v. MARSH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 15

116 N.E. 394

CONSOLIDATED ORDNANCE CO.

v.MARSH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917.

Report from Supreme Judicial Court, Suffolk County.

Action by the Consolidated Ordnance Company against William T. Marsh and others. On report from the superior court after decree dismissing the bill without prejudice. Interlocutory decree and order for final decree affirmed.

Goodwin, Procter & Ballantine, A. A. Ballantine, and G. K. Gardner, all of Boston, for complainant.

H. S. Davis, of Boston, for defendants.

RUGG, C. J.

The plaintiff, a foreign corporation, commenced an action at law against the defendant Marsh, who will hereafter be referred to as the defendant, a resident of this commonwealth, in the District Court of the United States for this district, and made an attachment of the defendant's property by trustee process. The action is still pending. That court has jurisdiction of the cause and the parties. Subsequently the plaintiff instituted this suit in equity in this court under R. L. c. 159, § 3, cl. 7, as amended by St. 1910, c. 531, § 2, for the same cause of action, to reach and apply property of the defendant which could not be reached to be attached in the action at law. The single justice gave the plaintiff opportunity to elect whether it would pursue the defendant in equity in this court or in the common law action previously brought in the District Court of the United States. The plaintiff declined to make such election, contending that it had a right to prosecute both proceedings. Thereupon a decree was ordered dismissing the bill without prejudice.

The question is whether as of right a plaintiff at the same time may pursue a defendant both in the state and federal courts covering the same territorial jurisdiction, on the same cause of action. That question resolves itself into two; first, whether the pendency of the one action is an absolute bar to the maintenance of the other, and second, if it is not such bar, what rule governs their prosecution? This precise question never before has been presented to this court. It has arisen in the federal courts.

[1] 1. It was said in McClellan v. Carland, 217 U. S. 268, 282, 30 Sup. Ct. 501, 505 :

‘The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction, for both the state and federal courts have certain concurrent jurisdiction over such controversies.’

That case was in one aspect exactly parallel to this. The actions in the state and federal courts both were pending within the same territorial limits, namely, within the state of South Dakota. Numerous similar expressions are found in other decisions of the federal courts. No distinction seems to have been drawn between instances where the jurisdiction of the two courts was geographically conterminous and where it was not. Hunt v. New York Cotton Exchange, 205 U. S. 322, 339, 27 Sup. Ct. 529, 51 L. Ed. 821;North Muskegon v. Clark, 62 Fed. 694, 10 C. C. A. 591;Barber Asphalt Co. v. Morris, 132 Fed. 945, 66 C. C. A. 55, 67 L. R. A. 761;Bunker Hill & Sullivan Mining & Concentration Co. v. Shoshone Mining Co., 109 Fed. 504, 47 C. C. A. 200, and cases in note; McClellan v. Carland, 197 Fed. 915, 110 C. C. A. 49, 53. It is desirable that so far as practicable the same rule of practice upon a point like this should prevail in the state and federal courts exercising concurrent jurisdiction. The rule that the pendency of an action in a court of one jurisdiction is not an absolute bar to the maintenance of another action for the same cause in another jurisdiction has been recognized in Lindsay v. Larned, 17 Mass. 190. It seems on the whole a just rule. The federal and state courts even within the same commonwealth exercise a jurisdiction derived from different sovereign powers. Since the rule upon this point is settled for the federal courts, we adopt it without further discussion. The pendency of one is not an absolute bar to the maintenance of the other.

[2] 2. The next question is whether a plaintiff of right has unrestrained liberty of action in this regard, subject to no control by the courts over his invocation of their proceedings. It is elementary that courts of the same jurisdiction will not permit a party to be vexed at the same time by two proceedings arising from the same cause of action, unless there is some sound reason having its foundation in justice for an exception to the general rule. The stringency of the common law rule against the concurrent pendency of two or more proceedings for the same cause has been relaxed somewhat in order to prevent a plaintiff from failing in the prosecution of a just claim because of doubt or mistake as to the right form of relief and perhaps for other reasons. But the rule against vexatious actions still remains. Manifest justice requires that a defendant be not hectored by useless and unnecessary litigation. Manufacturer's Bottle Co. v. Taylor-Stiles Glass Co., 208 Mass. 593, 95 N. E. 103;Spear v. Coggan, 223 Mass. 156, 111 N. E. 793. That is a sound and salutary doctrine. It is the correlative of the principle that a plaintiff ought to find a certain remedy by having recourse to the courts for all wrongs suffered by him in his person, property and character. It is a part of the liberty of a citizen of a free government that he be protected against wrongful harassment by others. Therefore, where two actions are pending between the same parties for the same cause within the same governmental unit, one in the federal and the other in the state court, we do not conceive it to be the law that the plaintiff has an absolute right to maintain both up to the point of obtaining a final judgment. The establishment of such an inflexible rule might work great hardship in some cases. Justice requires the court in which the point is raised to determine, after an examination of the merits in this respect, whether the defendant is in truth being doubly vexed by the contemporaneous prosecution of both actions, and make appropriate order in the light of what is revealed by such an inquiry. That proposition has been declared broadly in well considered judgments, even with reference to an action pending in a foreign country, in McHenry v. Lewis, 22 Ch. D. 397, and in The Christianborg, 10 Pro. Div. 141. There is an intimation in the same direction in Merrill v. New England Mut. Life Ins. Co., 103 Mass. 245, 248, 249,4 Am. Rep. 548. But without deciding more than is raised by the present record, it is the duty of this court to ascertain from all the circumstances whether the maintenance of these two cases ought to go forward simultaneously and, if not, what ought to be done, having regard to the ‘fundamental ethical rules of right and wrong.’ Robinson v. Mollett, L. r. 7 H. L. 802, 817.

3. In the case at bar...