Grenada Bank v. Bourke

• Decision Date: 17 January 1916
• Citation: 70 So. 449,110 Miss. 342
• Court: Mississippi Supreme Court
• Parties: GRENADA BANK v. BOURKE ET AL

70 So. 449

110 Miss. 342

GRENADA BANK v. BOURKE ET AL

Supreme Court of Mississippi

January 17, 1916

October 1915

APPEAL from the circuit court of Grenada county. HON. J. A. TEAT Judge.

Suit by the Grenada Bank against W. E. Bourke and others. From a judgment sustaining a demurrer to its replication to defendants plea in abatement, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Case reversed, demurrer overruled, and cause remanded.

Roane &amp Roane, for appellant.

We submit that this action of the court in sustaining appellee's demurrer and dismissing appellant's case was clearly erroneous, for the following reasons: 1st Because in the two suits in the circuit and chancery courts there was no identity of causes of action; 2nd: Because there was no identity in persons and parties to the actions, either parties plaintiff or defendant; 3rd: Because there was no identity of subject-matter in the two suits; 4th: Because all of the joint makers of the note sued upon by appellant in the circuit court were not parties to the chancery proceeding either as complainants or defendants; 5th: Because neither the firm of Caffey & Horton, nor P. A. Horton an individual member of said firm, were parties to the bill of complaint filed in the chancery court, and the said firm of Caffey & Horton were joint makers of the note sued upon by appellant; 6th: Because appellant was entitled to his remedy against each and every joint maker of the note, and the action of the lower court, in sustaining the demurrer and dismissing the suit, deprived appellant of this right; 7th: Because in the chancery proceeding appellant could not, in any phase of the case, have obtained the relief to which it was entitled. Relief was not obtainable even by cross-bill; 8th: Because the chancery court, in the decree rendered therein, dismissed the bill of complaint as to appellant and refused to order the cancellation or surrender of the note sued upon in this case; 9th: Because in the chancery court no decree could have been entered against either the firm of Caffey & Horton or against P. A. Horton, an individual member of the firm; 10th: Because at the time of the hearing of the demurrer by the lower court no action of any kind whatsoever was pending in the chancery court. The decree of said court had been rendered dismissing the bill of complaint as to appellant herein, as to the note sued upon in this cause; 11th: Because appellant had a right to pursue its remedy in a court of law upon the note held by it, after default in the payment thereof; 12th: Because, if the action of the lower court is sustained and appellant's case is dismissed, appellant will be without remedy, either at law or equity, to collect this note, which the chancery court, in its decree, has said should not be cancelled or surrendered to complainant, Boushe, one of the joint makers there, thus deciding that the Grenada Bank, appellant herein, was the rightful and legal holder and owner of said note sued upon in this cause.

We submit that before a plea in abatement, setting up a former suit pending, will be sustained, it must be shown that the suits were, 1st: Between the same parties; 2nd: For the same subject matter; 3rd: Seeking the same kind of relief. A plea in abatement and a plea of "res adjudicata" are on all fours, and our court has held in the case of Creegan v. Hymean, 46 So. 952, speaking through Chief Justice WHITFIELD, as follows: Before the plea of res adjudicata can prevail four things must be shown: 1st; identity in the thing sued for; 2nd: Identity in the cause of action; 3rd; identity of persons and parties to the action; and 4th; identity of the quality of the person for or against whom the claim is made." (Citing in above case 24 Am. & Eng. Ency Law, 778).

None of the essentials set forth by this court above are present in this case. 5 Ohio C. C. 69; 1 Am. Digest (Cent. Ed.), p. 60; 41 Cal. 61; 1. Am. Digest (Cent. Ed.), p. 59; 71 Miss. 767, 15 So. 107; 5 Tex. 127, 20 Conn. 510; 1 Am. Digest (Am. Ed.) 103; Bank v. Leonard, 20 How. Prac. 193; 27 Miss. 461; 67 Miss. 183; 83 Miss. 37; 65 Miss. 498, 58 Miss. 266; 34 Md. 249; 27 Miss. 466 (Quoting Story Equity Pl., 740-741); 22 F. Rep. 710, 64 Ala. 330; 23 Iowa 100, 92 Am. Rep. 413; 17 Ala. 430; 65 Miss. 499; 1 Am. Digest. (Decennial Ed.), 15; 58 Miss. 806, 67 Miss. 183; 83 Miss. 37, 58 Miss. 806; 83 Miss. 37; 29 Miss. 41; 33 Miss. 141, 58 Miss. 266; 3 How. Prac. 414, 17 How. Prac. 69; 10 N.Y. 500, La. An. 26; 70 N.W. 428; Code 1906, sec. 3935; 62 Miss. 350; 58 Miss. 398; Wright v. Frank, 61 Miss. 32; 45 Miss. 627, 60 Miss. 32; 82 Am. St. Rep. 586; 74 Tex. 522, 75 Iowa 537; 13 Hun. 33, 77 N.Y. 164, 83 Cal. 270; 17 Am. St. Rep. 248, 74 Tex. 522; 12 S.W. 216, 49 Iowa 183; 71 Iowa 306, 75 Iowa 533, 45 Minn. 102; 47 N.W. 462; 77 N.Y. 164; 65 L. R. A. 673, 115 Cal. 180; 45 Mo. 294; 44 Miss. 235, 67 Miss. 498; 45 Mo. 294; 4 La. Ann. 520, 8 La. Ann. 15; 1 Am. Digest p. 59; 39 Miss. 218, 77 Miss. 714; 78 Miss. 259, 79 Miss. 445-459; 90 Miss. 127; 1 Ency. Pl. & Pr. 761-762-763; 55 Miss. 145, 73 Miss. 665, 71 Miss. 614.

If the action of the lower court is sustained in this case then we are confronted with the rather remarkable condition of an undisputed right without a remedy; appellant with the possession of the note sued on herein, but denied a remedy to enforce his acknowledged right. We submit that the assignment of error herein is well taken, and that the lower court's action in sustaining the demurrer and dismissing appellant's suit should be reversed.

Dinkins & Caldwell, for appellant.

As to whether the plea in abatement setting up the pendency of another action was good depends upon the status of the cases at the time of the trial of the second cause. If there had been a discontinuance or dismissal of the first suit at the time of the trial of the second suit, then the plea is not good.

"While at the common law the rule was to sustain a plea in abatement of another suit pending if it was true at the time the plea was filed, but the tendency of the later cases and a preponderance of authorities sustain the doctrine that it is a good answer to the plea of pendency of a prior action for the same cause that the former suit has been discontinued, whether discontinuance be before or after the filing of the plea. Under this doctrine the plea will be overruled unless the prior suit is pending at the time of the trial of the second." 1 Cyc., 25 and Note.

"The modern tendency is to regard the objection as removed if the dismissal or termination occurs after the plea is filed. And it has been held that dismissal at any time before the hearing on the plea, or even at the trial of the second action is not too late." 1 Standard Proc., 1011.

"When the pendency of another suit is set up to defeat an action, the case must be the same. There must be the same parties, or, at least, such as represent the same interest, there must be the same rights asserted and the same relief prayed for. This must be founded on the same facts, and the title, or essential basis of the relief sought must be the same. The identity in these particulars should be such that if the pending case had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter before the same parties." Watson v. Jones, 13 Wall. 679; 20 L.Ed. 671; Barrows v. Kindred, 4 Wall. 299; 18 L. Ed., 383; 1 Cyc. 28; Kaplan v. Coleman, 60 So. 886.

It is not true that a court, having obtained jurisdiction of the subject-matter of suit and of parties before it, thereby excludes all other courts from the right to adjudicate upon other matters having a very close connection with those before the first court, and in some instance requiring the decision of the same question exactly. In examining into the exclusive character of the jurisdiction in such cases, we must have regard to the nature of the remedies, the character of the relief sought, and the identity of the parties in the different suits. A party having notes secured by a mortgage on real estate, may, unless restrained by a statute, sue in the court of chancery to foreclose his mortgage and in a court of law to recover a judgment on his note, and in another court of law in an action of ejectment for the possession of the land. Here, in all of the suits, the only question at issue may be the existence of the debt secured by the mortgage. But as the relief sought is different and the mode of procedure is different, the jurisdiction of neither court is affected by the proceedings in the other." Buck v. Colbath, 3 Wall. 334, 18 L.Ed. 257.

In order that the pendency of one suit may be set up to defeat another the cases must be the same, with the same parties, the same rights asserted, the same relief demanded, founded on the same facts and the bases of relief the same. U. S. v. The Haytian Republic, 154 U.S. 124; 38 L.Ed. 932; 1 Cyc. 27.

The demurrer is based on the old common-law idea that if it was true at the time the plea was filed that another action was pending that the replication is not good. The leading authority for this contention is the case of Frogg v Long, 28 Am. Dec. 69, which is the decision of the Kentucky court which also holds that the pendency of a case in the federal court is a bar and can be pleaded in abatement to an action in the state court, which holding is contrary to the great weight of authority, as is shown in note to Wilson v. Milliken, 82 A. S. R. 587. The Frogg case is cited in Dozier v. Williams, 47 Miss. 605, as authority, but as that was a case for a statutory penalty the court held that the one who first filed suit should have the preference and the citation of this Frogg case, we do not think, was intended to approve everything decided...