Hurst v. Everett

• Citation: 21 F. 218
• Parties: HURST and others v. EVERETT and another.
• Decision Date: 01 January 1884
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

21 F. 218

HURST and others v. EVERETT and another.

United States Circuit Court, W.D. North Carolina.

May Term, 1884

Johnston & Shuford and J. H. Merrimon, for plaintiffs.

W. B Ferguson and McLoud & Moore, for defendants.

DICK J.

The defendants, in their answer, allege the facts that the plaintiffs, before the commencement of this action, had begun several actions for the same subject-matter before a justice of the peace of the state, which have been tried and been transferred by appeal to the state superior court, and are now pending for trial. Under the old system of pleading-- derived from the common law-- which formerly prevailed in this state, the pendency of a former action was pleaded in abatement to a second action brought by the same parties in regard to the same subject-matter. Under our new Code system such a defense must be made available by demurrer, if the facts relied on appear in the complaint; if they do not so appear, they must be presented by an answer which is in the nature of a plea in abatement at the common law. Harris v. Johnson, 65 N.C. 478. The essential features of a plea in abatement must be observed by the pleader, and the defense be brought forward in due form and be insisted on in limine before a trial on the merits, or it will be considered by the court as waived. Hawkins v. Hughes, 87 N.C 115. There are some other matters of fact stated in the answer which we will refer to in a subsequent part of this opinion. We will regard that part of the answer which insists upon the pendency of the former actions, as a defense to this action, as a plea in abatement. The demurrer of the plaintiffs admits the truth of the allegations of the plea for the purpose of determining the legal questions involved.

This question has often been before the state and national courts, and given rise to some real and some apparent conflicts of decision. This long-vexed question has been settled by adjudications of the highest authority, and certain general principles have been announced which now cause uniformity in judicial opinion. I will briefly refer to some of these general principles without any extended citation of authorities, which are now familiar learning.

In the case of Childs v. Martin, 69 N.C. 126, the supreme court of this state announced the rule as well settled, and as consonant with reason, and necessary to prevent confusion and conflict of jurisdiction in the administration of justice, 'that where there are courts of equal and concurrent jurisdiction, the court possesses the case in which the jurisdiction first attaches. ' This case was dismissed for the want of jurisdiction. Upon examining the authorities upon this subject it will be found that the rule so broadly stated only applies to courts of the same sovereignty. Ins. Co. v. Brune, 96 U.S. 588; Sloan v. McDowell, 75 N.C. 29.

The state and national courts were respectively created by separate and distinct sovereignties, and although their jurisdictions are often concurrent, they are in most respects independent, and they cannot generally interfere with the legal proceedings of each other by writ of injunction, or any other restraining, prohibitory, or mandatory writ. In order to secure harmony in the administration of justice, statutes have been passed by congress assimilating the forms and modes of practice, pleading, and procedure of the national courts in common-law actions to those of the courts of the states in which they are held, and requiring them, to a certain extent, to adopt the construction made by the highest courts of a state of the constitution and statutes, and the laws regulating the rights of property in a state. The exclusive and paramount jurisdiction of the national courts have been clearly defined, and provisions have been made for the removal of certain classes of cases from the state courts to the federal courts, and also for reviewing by the supreme courts the final decisions of the highest courts of the states, where federal questions are involved, by writs of error and appeal.

The courts have also established certain rules, in exercising jurisdiction, founded in comity, wisdom, and experience, and deemed necessary to be strictly observed in order to prevent conflicts, and preserve kindly relations and harmonious action among courts administering justice within the same territorial limits. 'In Payne v. Hook, 7 Wall. 425, it was decided that the jurisdiction of the circuit court of the United States, in a case for equitable relief, was not excluded, because by the laws of the state the matter was within the exclusive jurisdiction of its probate courts; but, as in all other cases of conflict between jurisdictions of independent and concurrent authority, that which has first acquired possession of the res which is the subject-matter of the litigation is entitled to administer it. ' Ellis v. Davis, 109 U.S. 498; S.C. 3 S.Ct. 327.

The principle last announced is sustained by many authorities, and is clearly and fully stated by Mr. Justice MILLER in Buck v. Colbath, 3 Wall. 341.

The same principle is also applied when a court of concurrent and independent jurisdiction has, by the nature of its proceedings, first acquired constructive possession or control of property which it must dispose of in affording complete relief. Its decree makes the purchaser's title of such property relate back to the commencement of the suit, and the force and effect of such decree cannot be rendered nugatory by proceedings in a court of another jurisdiction. Stout v. Lye, 103 U.S. 66.

This principle was applied by Judge SAWYER in a suit in the circuit court...