Fowler v. Ross

• Court: California Court of Appeals
• Writing for the Court: COLOGNE; GERALD BROWN, P.J., and STANIFORTH
• Citation: Fowler v. Ross, 191 Cal.Rptr. 183, 142 Cal.App.3d 472 (Cal. App. 1983)
• Decision Date: 27 April 1983
• Parties: Thomas W. FOWLER, et al., Plaintiff and Respondent, v. John M. ROSS, Defendant and Appellant. Civ. 26293.

Page 183

191 Cal.Rptr. 183

142 Cal.App.3d 472

Thomas W. FOWLER, et al., Plaintiff and Respondent, v. John M. ROSS, Defendant and Appellant.

Civ. 26293.

Court of Appeal, Fourth District, Division 1, California.

April 27, 1983.

As Modified on Denial of Rehearing

May 3, 1983.

McLean & McLean, Donald F. McLean, Jr., and Corinne D. Clark, El Cajon, for plaintiff and respondent.

John M. Ross, in pro per.

COLOGNE, Associate Justice.

This action was instituted by Thomas W. Fowler, Donna M. Fowler, Janet P. Hall, Martin Kennedy and Sharon L. Kennedy, as sellers, against John M. Ross, as buyer, relative to an agreement to purchase certain real property on which the sellers had agreed to build a house according to specifications. The first amended and supplementary complaint sought rescission, a declaration of rights under the contract and damages for defamation which allegedly occurred during the dealings between the parties. The buyer answered and made a timely request for a jury trial but, before the case went to trial, the sellers dismissed certain of the causes of action, leaving for resolution only those causes of action for rescission and declaratory relief and the court denied the request for a jury. Judgment was entered in favor of the sellers after the finding Ross failed to perform a condition precedent and he was not entitled to any rights under the agreement. He appeals.

On August 25, 1977, the parties executed an agreement for the sale and purchase of certain residential property on certain conditions among which was a promise by the buyers to provide an irrevocable written loan commitment. The exact language of that undertaking is:

"7. On or before the fifteenth day after the notice of completion is filed with the County Recorder in the County of San Diego, the buyer will deposit to the escrow the remaining purchase monies. This purchase escrow will close and record not later than two business days after deposit of said funds. Within 45 days of the signing of this agreement, buyer will provide written verification to seller the source of these funds. If the buyer cannot provide an irrevocable written committment [sic] during the 45 day period, the buyer will release the seller from his obligation of selling the property to the buyer."

Pursuant to this contract of sale, on September 15, 1977, the parties executed escrow instructions which, among other provisions, stated:

"The parties hereto acknowledge that their agreement has been and continues to be that the buyer has deposited $23,000.00 with the seller in connection with this transaction and has applied for a $100,000.00 loan, which is expected to be approved on or before October 11, 1977, and that the balance of $31,500.00 due to the sellers shall be deposited in escrow within 15 days from the recording of the notice of completion of the residence the subject of this agreement, or sooner at the buyer's election. On or before October 11, 1977, the buyer is to provide the seller with written verification of the source of the buyer's closing funds. If the buyer cannot provide an irrevocable written verification of the source of closing funds, the seller has the option of terminating the agreement between the parties and the buyer agrees to release the seller from the obligation to sell the subject residence to the buyer."

On December 2, 1977, the sellers gave notice that in view of the fact the loan commitment had not been provided, the agreement was terminated.

Ross contends first the superior court has no jurisdiction since he had first filed his own action in this controversy in the federal courts. Based on diversity of citizenship, the United States District Court in Michigan accepted the case and transferred the matter to the District Court in San Diego, a more convenient forum, for further proceedings. While we may take judicial notice of some activity in that case, the matter has not yet gone to trial and awaits a trial date setting.

Ross asserts the rule applicable here is that which provides where two or more tribunals have concurrent jurisdiction, the tribunal which first asserts jurisdiction retains it to the exclusion of all others in which the action might have been initiated (Scott v. Industrial Acc. Com., 46 Cal.2d 76, 81, 293 P.2d 18). That rule, however, is applicable where the tribunals are within the same state but the rule does not apply where jurisdiction is taken by a state court and a federal court. The rule is well established that state and federal courts will not interfere with or try to restrain each other's proceedings (Donovan v. City of Dallas, 377 U.S. 408, 412 [84 S.Ct. 1579, 1582, 12 L.Ed.2d 409] ).

" 'The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States, it is something more. It is a principle of right and of law, and therefore, of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they coexist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of the court from which it issues.'

"...

"But a controversy is not a thing, and a controversy over a mere question of personal liability does not involve the possession or control of a thing, and an action brought to enforce such a liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case. The rule, therefore, has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded. [Citations.]" (Kline v. Burke Const. Co., 260 U.S. 226, 229-230 [43 S.Ct. 79, 81, 67 L.Ed. 226].)

Under the facts of this case, both the federal and state courts have acquired jurisdiction but neither acquires exclusive authority and each may proceed at its own pace until one or the other reaches final judgment and becomes res judicata on the issue. The California court does have jurisdiction to proceed as it did and its judgment is valid (see 1 Witkin, Cal.Procedure, Jurisdiction, § 296, pp. 837-838).

Ross next complains he was denied a jury trial.

The right to a jury trial is a basic part of the state and federal systems of jurisprudence (art. I, § 16, Cal. Const.; amend. VII, U.S. Const.; Lofy v. Southern Pacific Co., 129 Cal.App.2d 459, 462, 277 P.2d 426). The right thus guaranteed is that of a jury trial as it existed in common law. The right is available in actions at law but is not available in actions in equity ( In Matter of Coburn, 165 Cal. 202, 219, 131 P. 352). In determining whether the action is in law or in equity, the court should ascertain the nature of the rights actually involved as revealed by the pleadings and the facts (see generally, 41 Cal.Jur.3d, Jury, § 7). There is no right to a...