Fleming v. Courtenay

• Decision Date: 01 March 1901
• Citation: 95 Me. 135,49 A. 614
• Parties: FLEMING v. COURTENAY.
• Court: Maine Supreme Court

49 A. 614

95 Me. 135

FLEMING

v. COURTENAY.

Supreme Judicial Court of Maine.

March 1, 1901.

(Official.)

Exceptions from supreme judicial court, Lincoln county.

Bill in equity by Alice E. Fleming against William Courtenay, under Rev. St. c. 87, § 19. An action at law (see 95 Me. 128, 49 Atl. 611) was pending between the same parties. On motion of the defendant, the plaintiff was ordered to elect between the two suits. To this order the plaintiff excepted. Overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, and SAVAGE, JJ.

O. D. Castner, for plaintiff. J.

E. Moore and G. B. Sawyer, for defendant.

WHITEHOUSE, J. This case comes to the law court on the plaintiff's exceptions to an order of the presiding justice compelling her to elect whether she would proceed with this suit in equity, or with an action at law which the plaintiff was then prosecuting against this defendant in the same jurisdiction, for the same cause set forth in this bill in equity. By the terms of the order, the plaintiff was required to make her election within eight days, and if she elected to proceed at law, or failed to make any election, her bill in equity was to be dismissed, with costs. The plaintiff took exceptions to the order, and made no election.

The practice of ordering an election between an action at law and a suit in equity does not appear to have been considered in any reported case in this state, but it is a well-settled and familiar rule of procedure in all courts exercising general equity jurisdiction that where a plaintiff is prosecuting an action at law and a suit in equity against a defendant at the same time, for the same cause, he may be compelled by the court, upon application of the defendant, to elect whether he will proceed with the action at law or the suit in equity. Ambrose v. Nott, 2 Hare, 649; Fennings v. Humphrey, 4 Beav. 1; Rogers v. Vosburg, 4 Johns. Ch. 84; Central R. Co. of New Jersey v. New Jersey W. L. R. Co., 32 N. J. Eq. 67; Sears v. Carrier, 4 Allen, 339. The practice is said to have originated in an order of Lord Bacon, in which it was declared that "double vexation is not to be admitted; but, if the party sue for the same cause at common law and in chancery, he is to have a day given to make his election where he will proceed, and, in default of such election, to be dismissed." 2 Daniell, Ch. § 961.

The suits must be practically for the same cause, and brought by the same parties, or in the same right, and must be such that a judgment or decree in one would be a bar to the other. But the plaintiff will not be compelled to elect unless the remedy in the suit at law is equally complete and adequate with the remedy in equity. Whitehouse, Eq. Prac. § 441, and cases there cited. The order should allow the plaintiff a reasonable time in which to make his election, and in the absence of special reasons justifying a different time, in the early chancery practice, the plaintiff was uniformly required to elect within eight days after the service of the order. Bracken v. Martin, 3 Yerg. 55; Central R. Co. of New Jersey v. New Jersey W. L. R. Co., 32 N. J. Eq. 67; Rogers v. Vosburg, 4 Johns. Ch. 84; Boyd y. Heinzelman, 1 Ves. & B. 382.

When the court cannot satisfactorily determine without an examination of all the pleadings whether the two suits are for the same cause, or whether the action at law is equally complete and adequate with the remedy in equity, it may decline to order the plaintiff to elect until after the defendant in the equity...