Davis v. Morton, Galt & Co.

• Citation: 67 Ky. 442
• Parties: Davis v. Morton, Galt & Co.
• Decision Date: 19 January 1868
• Court: Court of Appeals of Kentucky

67 Ky. 442

Davis v. Morton, Galt & Co.

Court of Appeals of Kentucky.

January 19, 1868

1. The courts of Kentucky will not abate a suit on a plea of the pendency of a prior suit, on the same debt and between the same parties, in a court of another State.

2. As between themselves the States of this Union, though integral parts of the same national sovereignty, are yet foreign to and independent of, each other.

APPEAL FROM LOUISVILLE CHANCERY COURT.

WM ATWOOD, For Appellant,

CITED--

3 McLean, 221; ex parte Balch.

4 McLean, 535; Hacker vs. Slevins.

1 Connecticut, 154; Hart vs. Granger.

Civil Code, sec. 120, sub-sec. 3, and sec. 123.

WM. MIX, For Appellees,

CITED--

MSS. Opn., Jan., 1857; McMicken vs. Hammond.

2 Parsons on Contracts, 4 th ed., p. 232.

Story's Conflict of Laws, sec. 610, n. a.

9 Johnson, 221; Brown vs. Seymour.

12 Johnson, 99; 3 McCord, 38.

13 Ills., 486; 5 De. G. C. S., 95.

Stewart's Lower Canada R., 558.

3 Swanst., 703; 2 Curtis C. C., 559; 17 Mass., 197.

10 Eng. Law and Equity R., 250.

OPINION

ROBERTSON JUDGE.

The appellees sued the appellant in the Louisville chancery court for the amount due by him to them as holders of a protested bill of exchange drawn by him in Memphis, Tennessee, and payable there, for about one thousand one hundred and sixty-six dollars, and, on the execution of the proper bond, procured process of arrest, of garnishment and attachment. Under that process the appellant was arrested, and afterwards liberated on the execution of an approved bail bond for securing the debt; and, having appeared in the suit, he answered, not controverting the debt, but urging an abatement of the proceeding, on the allegation that a suit for the same debt, and between the same parties, instituted in the municipal court of Memphis, was still pending. A demurrer to that answer was sustained, and the appellant, refusing to make any other defense, judgment was rendered against him for the amount claimed, and a capias awarded against him. Of this he complains.

It seems to us that the judgment was right.

For the prevention of unnecessary vexation, confusion, and possible injustice, the common law will not allow, if properly objected to, the prosecution of more than one suit at the same time, between the same parties, for the same cause of action, in the same court, or in different courts of the same sovereignty; and the pendency of the first may abate the last. But the same common law will not abate a suit in the forum of one sovereign on a plea of the pendency of a prior suit in a forum of another sovereign. The reason of this latter doctrine is two-fold--1st. Because a foreign judgment, depending on foreign law, might be unjust, and could not be enforced beyond the jurisdiction of the foreign court without a new suit on it as only prima facie evidence; and 2d, and chiefly, because the remedy in the country where the last suit is brought may be more adaptable and safe, and means for effectuating a judgment may be found in the latter and not in the former country. As between themselves the States of this Union, though integral parts of the same national sovereignty, are yet foreign to, and independent of, each other.

Nevertheless, the Federal Constitution, and an act of Congress for effectuating its purpose of harmonious union, give to the judgments and judicial proceedings in one of...