Green v. Underwood

• Decision Date: 21 March 1898
• Docket Number: 1,000,1,028.
• Parties: GREEN v. UNDERWOOD. UNDERWOOD v. GREEN.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F. 427

GREEN v. UNDERWOOD.

UNDERWOOD v. GREEN.

Nos. 1,000, 1,028.

United States Court of Appeals, Eighth Circuit.

March 21, 1898

Clinton Reed (Willard Teller, on brief), for Willard R. Green.

D. V Burns (Charles H. Toll, on brief), for Frank L. Underwood.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

The plaintiff in error in case No. 1,000 brought suit against the defendant in error to recover the sum of $22,500, with interest; representing the value of 450 shares of the capital stock of the Kansas City & Independence Rapid-Transit Railway Company, alleged to have been delivered and sold by the plaintiff in error to the defendant in error. To this petition the defendant below made answer, tendering the general issue in the first count, and in the second count pleading the pendency of another suit, as follows:

'For a second defense, the defendant says that in a certain civil action, in which the plaintiff above named is plaintiff and this defendant is defendant, commenced in the district court of Arapahoe county, in the state of Colorado, long prior to the institution of this action, and now pending and undetermined in said court, the questions of the liability of this defendant to the plaintiff by reason of the matters alleged in the complaint, and the extent of such liability, are, and long prior to the commencement of this action were, in issue in said cause in said district court; that the issues joined therein are material issues in said cause; that said district court is a court of general jurisdiction, and has, and since long prior to the commencement of this action has had, full and complete jurisdiction in said cause therein pending, over the parties hereto, and of the questions of the liability of this defendant by reason of the matters alleged in the complaint herein, and the extent of any such liability.'

The answer then set up a counterclaim in favor of the defendant against the plaintiff. The plaintiff demurred to the second defense for the reasons following:

'That the matter alleged in said second defense does not state facts sufficient to abate the suit, or that are any defense to the action. (2) Because the said answer does not sufficiently describe or state what the matters in said case are. (3) Because it does not appear that the matters in issue in this case are the only matters in issue in the former suit, or that all the matters in this case are at issue in the former suit. (4) Because it is not stated in said second defense that the former suit is between the same parties as the present suit, or who the parties to the said former suit are. (5) Because the said second defense as the same is pleaded, is uncertain and insufficient. (6) Because the same is not sworn to.'

The court took this demurrer under advisement, and afterwards overruled it and dismissed the suit, without more. At the time the court took this action, neither of the counsel for the respective parties was in court. The knowledge of this action by the court coming to plaintiff's counsel, he notified defendant's counsel that he would move the court to vacate the order and judgment entered in said cause, and for permission to reply to the defense pleaded in the answer. Accordingly, on the next day plaintiff filed such motion in court; and counsel for both parties appearing, the court heard said motion, and overruled it, and refused to permit plaintiff to reply to the answer. Sixteen days thereafter the bill of exceptions recites that the 'defendant moved the court for an order requiring the plaintiff to plead to his counterclaim herein within a time to be fixed by the court, which motion the court denied, holding that the counterclaim followed the cause made by the complaint, and had been dismissed from this court, to which ruling the defendant at the time excepted. ' Both parties sued out writs of error to reverse the action of the court, and the two cases are submitted together.

No rule of practice is better settled than that in an action at law, in personam, pending in the United States court, the plea of lis pendens between the same parties in a suit brought in the state court is no bar to the prosecution of the action in the United States court. Crescent City Live-Stock Landing & Slaughter-House Co. v. Butchers' Union Live-Stock Landing & Slaughter-House Co., 12 F. 225; Stanton v. Embrey, 93 U.S. 554; Insurance Co. v. Brune, 96 U.S. 588; Gordon v. Gilfoil, 99 U.S. 178; Briggs v. Stroud, 58 F. 720; Holton v. Gwynn, 76 F. 97; Story, Eq. Pl. 741; Fost. Fed. Prac. Sec. 129. This court has, in an equity proceeding, held that where there was pending in a state court, between the same parties, a proceeding in equity involving the same matters, such as the possession of specific real or personal property, or to quiet the title to real estate, in which it might become necessary to appoint a receiver pendente lite, or in which it might become necessary to grant an injunction, or to take some other preservative auxiliary actio;, the court which first acquires jurisdiction of the parties and the subject-matter ought to be permitted to proceed to final judgment. But even in a court of chancery, where the rules of equity possess such flexibility as to permit the court to proceed, ex aequo et bono, with large discretion, to preserve the rights of the parties, it will not, upon the plea of lis pendens, dismiss the suit in the federal court, but will simply postpone the hearing thereof until after the determination of the suit in the state court. Merritt v. Barge Co., 49 U.S.App. 85, 24 C.C.A. 530, and 79 F. 228; Zimmerman v. So Relle, 49 U.S.App. 387, 25 C.C.A. 518, and 80 F. 417. The reason of the rule at law is very elaborately discussed in Hatch v. Spofford, 22 Conn. 485. The plea therefore was bad in law. It was, moreover, defective in substance. Story, in his work on Equity Pleading (section 736 et seq.), says this plea is analogous to the plea at common law; that it should set forth with certainty the commencement of the former suit, its general nature and character, its object, and the relief prayed. 'The plea should aver, and so the facts should be, that the second suit is for the same subject-matter as the first. And therefore a plea which did not expressly aver this, although it stated matter tending to show it, was considered as bad in point of form. It should state that the same issues are joined in the former suit as in the suit now before the court, and that the subject-matter is the same, and that the proceedings in the former suit were taken for the same purpose. The plea should also aver that there have been proceedings in the suit, such as an appearance, or process requiring appearance, at least. ' Instead of the plea in this case containing substantially these requisites, in the form of direct allegations, it pleads the facts inferentially, and states conclusions rather than facts. It does not state whether the suit in the state court is one at law or in equity. It does not state whether the relief sought is the same as in this action, nor what is the state of the pleadings therein. It simply states that the plaintiff commenced an action in the district court of Arapahoe county, in the state of Colorado, prior to the institution of this suit, which is pending, and that the questions of liability of this defendant to the plaintiff by reason of the matters alleged in the complaint, and the extent thereof, are in issue in said cause. For aught that appears in these averments, the suit pending in the state court may have been a bill in equity, involving other issues and demanding other relief; and, if so, the plea was bad. Id. Sec. 742; Hatch v. Spofford, 22 Conn. 490, 491; Blanchard v. Stone, 16 Vt. 234. As such a plea is wholly technical, and does not go to the merits of the cause, and is intended to stay the hand of justice in a court having jurisdiction over the parties and the subject-matter, it is but right and just that the party interposing such a plea should bring himself within the strictest rules of correct pleading. Thompson v. Lyon, 14 Cal. 39; 2 Estee,Pl.&Prac. § 3183. The defendant in error takes shelter under section 1011, Rev. St. U.S., which reads as follows:

'There shall be no reversal in the supreme court or in a circuit court upon a writ of error for error in ruling any plea in abatement other than a plea to the jurisdiction of the court.'

This provision first appeared in the judiciary act of 1789. 1 Stat. 85. It has accordingly been held by the supreme court that the plea in question is in the nature of a plea in abatement, and therefore the error of the court in ruling thereon is not reviewable on writ of error. Piquignot v. Railroad Co., 16 How. 104; Stephens v. Bank, 111 U.S. 197, 4 Sup.Ct. 336, 337. In the event of further proceedings in this case, the plaintiff may safely rely upon the disposition of the circuit court to correct its own error in this respect.

The action of the court in proceeding to final judgment, and refusing to permit the plaintiff to plead over to the answer is reviewable on writ of error. At common law the rule of practice was that, upon an issue of law arising on dilatory plea, the judgment, if for the plaintiff, was that the defendant answer over; and such judgment was designated as a 'judgment of respondeat ouster.' Not being a final judgment, the proceedings were resumed. Steph. Pl. 115; Bliss, Code Pl. Sec. 303; Lambert v. Lagow, 1 Blackf. 388. 'The judgment for the defendant on a plea in abatement, whether it be on an issue of fact or law, is that the writ be quashed, or, if temporary disability or privilege be pleaded, that the plaint remain without day until, ' etc. 1 Chit.Pl. 466. But the rule of...