Cutten v. Latshaw

• Decision Date: 06 February 1961
• Docket Number: No. 23256,23256
• Citation: 344 S.W.2d 257
• Parties: Ruloff E. CUTTEN et al., Appellants, v. Robert W. LATSHAW and Martha J. Latshaw, Respondents.
• Court: Missouri Court of Appeals

Page 257

344 S.W.2d 257

Ruloff E. CUTTEN et al., Appellants, v. Robert W. LATSHAW and Martha J. Latshaw, Respondents.

No. 23256.

Kansas City Court of Appeals, Missouri.

Feb. 6, 1961.

Lawrence R. Brown, John C. Noonan, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for appellants.

Roy P. Swanson, Arthur M. Wright, Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, for respondents.

MAUGHMER, Commissioner.

The Circuit Court of Jackson County, Missouri permanently enjoined plaintiffs from further prosecution of their suit against defendants which is now pending in the District Court of Johnson County, Kansas. Plaintiffs have appealed. Where only injunctive relief is sought and it cannot be certainly determined from the record that the pecuniary value resulting from its being granted or denied exceeds $15,000, appellate jurisdiction is in this court and not in the Supreme Court. Joe Dan Market, Inc. v. Wentz et al., 321 Mo. 943, 13 S.W.2d 641.

No testimony was offered or heard by the trial court. The facts must be assembled from the pleadings, from defendants' motion to restrian with supporting suggestions in affidavit form, together with plaintiffs' suggestions in opposition, likewise in affidavit form. However, the material facts are apparently either conceded or not disputed.

Plaintiffs comprise 30 individuals, doing business as a partnership under the name of E. F. Hutton & Company, with offices at 111 West 10th Street, Kansas City, Missouri. The plaintiff John Latshaw is a citizen and resident of Johnson County, Kansas. None of the individual plaintiffs are residents or citizens of the state of Missouri. The defendants Robert W. and Martha J. Latshaw are citizens and residents of Johnson County, Kansas, which county adjoins Jackson County, Missouri, within which most of the City of Kansas City, Missouri is located. From November, 1957 until May, 1959, defendants were clients of E. F. Hutton & Company, trading on the Chicago and Kansas City Boards of Trade in commodity futures, particularly wheat and beans. Plaintiffs claim that defendants are indebted to them on this account. Defendants deny they are so indebted and assert in their counterclaim that plaintiffs owe defendants.

On August 28, 1959, plaintiffs filed suit (No. 26,143) in the District Court of Johnson County, Kansas against defendants on this account. On the same day service was had upon each defendant. Responsive thereto defendants appeared by their attorneys and filed first a 'Motion to Make More Definite and Certain' and then filed answer and counterclaim.

Thereafter on August 29, 1959, plaintiffs filed an identical suit against the same defendants in the Circuit Court of Jackson County, Missouri (No. 618,666). Again defendants answered, counterclaimed and then filed the motion to restrain, out of which this appeal stems. Why did plaintiffs one day after the Kansas suit, file exactly the same suit against the same parties in Missouri? Plaintiffs' strategists say they learned from sources which they believed reliable that unless they did bring this second suit they would be sued by the defendants in Missouri, and they did not wish to lose either the initiative or their role as parties plaintiff.

On May 17, 1960, the motion to restrain was sustained by the Missouri trial court for the declared reasons that 'The Kansas suit is a duplicate of the one now pending before this court; that plaintiffs, who were doing business in Missouri, chose this forum and it appears from the records and suggestions filed that the acts complained of in both the petition of plaintiffs and the counterclaim of defendants occurred in Missouri, and the records of the plaintiffs are undoubtedly at their office in Missouri'. The order then 'permanently enjoined' plaintiffs, their agents, servants and employees from further prosecution of the suit filed by them against defendants in the District Court of Johnson County, Kansas, at Olathe, and provided that this order be deemed a final judgment for purposes of appeal. Plaintiffs filed motion for new trial on May 19, 1960, which motion was on the same date overruled. Timely appeal followed.

On their appeal appellants present two points. First, the Missouri trial court did not have jurisdiction to enjoin the nonresident plaintiffs from further prosecution of their suit against defendants in Kansas. Second, there is no showing that such prosecution would impose any unconscionable burden or hardships on defendants and therefore it was error to grant the injunction.

The question before us is an interesting one. The general subject has been presented many times before many courts but most frequently upon facts somewhat different from ours, especially as to domicile.

It seems well settled in Missouri that where two actions involving the same subject matter are brought between the same parties in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction and may dispose of the entire controversy without the interference of any other court. State ex rel. Davis et al. v. Ellison et al., 276 Mo. 642, 208 S.W. 439; State ex rel. Dunphy v. Eversole, Mo.App., 339 S.W.2d 506, 509. Prohibition will lie to prevent such interference and the court in which the subsequent action is brought should sustain a plea in abatement. State ex rel. Mack v. Scott, 241 Mo.App. 674, 235 S.W.2d 106; Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626. However, this rule does not necessarily apply where the prior action is pending in a court of different or foreign jurisdiction such as in courts of different states. 1 C.J.S. Abatement and Revival Sec. 64, p. 97; Draper v. Louisvill & N. R. Co., supra; State ex rel. Dunphy v. Eversole, supra. 'In the application of the doctrine of 'another action pending,' each state is regarded as foreign to every other state; and hence, the pendency of an action in personam, or transitory action, in one state cannot, as a general rule, be pleaded in abatement of an action subsequently commenced in another state between the same parties for the same cause of action, * * *'. 1 C.J.S. Abatement and Revival Sec. 65, p. 98.

While courts of one country or state have no authority to stay proceedings in the courts of another, they have undoubted authority to control all persons and things within their territorial limits. Therefore, insofar as its own citizens are concerned, Missouri courts may, acting in personam upon its citizens, direct them by injunction to proceed no further in a Kansas suit and enforce obedience by process in personam. In our case none of the individual plaintiffs reside in Missouri, but Hutton & Company does maintain its office in Missouri.

In Doerr et al. v. Warner et al., 247 Minn. 98, 76 N.W.2d 505, the Supreme Court of Minnesota restrained a co-trustee from prosecuting a like action in Utah. However, the Minnesota action was commenced first and a Minnesota trust was involved requiring settlements to be made in Minnesota. The court said (76 N.W.2d at page 513): 'It is well settled that the court first obtaining jurisdiction of the subject matter and of the parties may properly restrain one of the parties from proceeding in another state'. The court also expressed the view that the real reason impelling most courts to deny an injunction against a nonresident was not lack of jurisdiction, but because ordinarily it could not be enforced. The Minnesota court could enforce and the injunction was granted, but basically for these reasons: (1) the Minnesota suit was filed first and (2) only the Minnesota court where the trust was pending and its property located could completely adjudicate the controversy.

In Carpenter, Baggott & Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101, plaintiffs first sued defendant in New York and obtained service by attachment and garnishment. Shortly thereafter plaintiff sued defendant in North Carolina. The dispute was over a customer's account covering trading in grain futures--the same as in our case The trial court issued a mandatory injunction, restraining further prosecution of the New York suit. The Supreme Court reversed outright and said (77 S.E. at page 1101): 'There are many cases that hold that the courts of a state where both parties are domiciled may restrain the prosecution of suits between such parties in a foreign jurisdiction. (citing cases). This power has been most frequently exercised in those cases where a resident creditor is seeking to evade the laws of his domicile, and the ability to exercise it rests upon having the person of the party enjoined within reach of the process of court. But, even in such cases, the power should be exercised sparingly and only to suppress manifest injustice and oppression, and not from any arrogant sense of greater ability to do justice to either party or because...