Radford v. Folsom

• Decision Date: 02 November 1882
• Citation: 14 F. 97
• Parties: RADFORD, Assignee, etc., v. FOLSOM and others. [1]
• Court: U.S. District Court — Southern District of Iowa

14 F. 97

RADFORD, Assignee, etc., v. FOLSOM and others. ^[1]

United States Circuit Court, S.D. Iowa, Western Division.

November 2, 1882

This cause is now before the court upon a plea to the bill interposed by the respondents, which is termed a plea in bar but which, in effect, is a plea in abatement. The present bill is filed by George W. Radford, assignee in bankruptcy of Frank Folsom, against Jeremiah Folsom in his own right Jeremiah Folsom, administrator of the estate of Sarah M Folsom, deceased, and Adele, Florence, and George B. Folsom minor heirs of said Sarah M. Folsom, who appear by J. B. Blake, their guardian; and in substance the bill avers that complainant is the owner of certain realty in the bill described, and prays that his title thereto may be confirmed and quieted as against the respondents, and that he may have a writ of possession. The plea sets forth that prior to the commencement of this proceeding, to-wit, in the year 1873, Frank Folsom, to whose rights his assignee, George W. Radford, was afterwards substituted, brought an action against Jeremiah Folsom and Sarah M. Folsom, in the circuit court of Pottawattamie county, Iowa, 'for the same matters and to the same effect, and for the like relief and purpose as the now complainant doth by his present bill set forth; in which said action issue was joined, and the same is still depending in said honorable court, and is undisposed of. ' To this plea the complainant interposes a demurrer, thus presenting the question whether an action pending in the state court of Iowa can be pleaded in abatement of a subsequent action commenced between the same parties in the United States court for the district of Iowa, for the same subject-matter and the same relief.

Sapp & Lyman, for complainant.

Mayne & Reid, and H. H. Trimble, for defendants.

SHIRAS D.J.

The doctrine is now well settled that an action pending in a foreign jurisdiction cannot be pleaded in abatement of an action commenced in a domestic forum, even if there be identity of parties, of subject-matter, and of relief sought. Smith v. Lathrop, 44 Pa.St. 326; Bowne v. Joy, 9 Johns, 221; Allen v. Watt, 69 Ill. 655; Insurance Co. v. Brune's Assignee, 96 U.S. 588; Stanton v. Embrey, 93 U.S. 548. It is equally well settled that at law the pendency of a former action between the same parties, for the same cause and relief, in a court of the state in which the second action has been brought, will be cause of abatement if pleaded in the second action. Insurance Co. v. Brune's Assignee, 96 U.S. 588. In equity, the general rule is the same. Story, Eq. Pl. Secs. 736-741. In Insurance Co. v. Brune's Assignee, 96 U.S. 588, it is held that 'the rule in equity is analogous to the rule at law,' and the statements of Lord Hardwicke in Foster v. Vassall, 3 Ark. 587, is quoted approvingly, to-wit, that 'the general rule of courts of equity with regard to pleas in the same as in courts of law, but exercised with a more liberal discretion.'

The case of Insurance Co. v. Brune's Assignee further states the rule to be that 'a bill in equity pending in a foreign jurisdiction has no effect upon an action at law for the same cause in a domestic forum, even when pleaded in abatement;' and further, 'it has no effect when pleaded to another bill in equity;' that is to say, a bill pending in a foreign forum will not, if pleaded, abate a bill pending in a domestic forum.

The reasons usually assigned in support of this doctrine are that the court of the one state or country cannot judicially know whether the rights of the plaintiff are fully recognized or protected in such foreign state or country, nor whether the plaintiff can enforce to full satisfaction any judgment he may obtain in the foreign tribunal; and further, that a court will not compel a plaintiff to seek his remedy in a foreign forum; or, as it is said by the supreme court of Connecticut in Hatch v. Spofford, 22 Conn. 485: 'That country is undutiful and unfaithful to its citizens which sends them out of its jurisdiction to seek justice elsewhere. ' None of these cases, however, meet the exact point presented by the plea interposed in the case now under consideration; for in all of them it will be found that the proceedings were pending in the courts of different states or circuits, whereas in this case the two proceedings are pending within the same state, but the one in the state and the other in the federal court. We do not find that this question has ever been finally settled by the supreme court of the United States, nor by the circuit court for this circuit.

In the case of Brooks v. Mills Co. 4 Dill. 524, is found a full and able discussion of the question in the opinion of Judge LOVE, both upon principle and authority, with a review of the decision of Mr. Justice CLIFFORD in Loring v Marsh, 2 Cliff. 322; and the evils resulting from permitting parties to litigate the same subject-matter in two courts exercising judicial power within the same territorial limits, are very clearly and forcibly shown; and the conclusion is reached that 'it would seem most rational and just that a plea in abatement should be allowed in order to avert consequences so mischievous. ' The judgment of the court, however, in that cause was placed upon another ground; the plea in abatement being overruled for the reason that it appeared upon the face of the plea that the parties to the suit in the state court were not the same as the parties to the bill in the United States court, and the question now before the court, though discussed, was not authoritatively determined. To the report of this cause in 4 Dill. is attached a full note by the learned reporter, citing the leading cases on the general question; and it is therein stated that 'it is clear that the foregoing cases do not go to the length of holding that the pendency of a prior suit in a state court is not a valid plea in abatement to a suit for the same cause, and between the same parties to an action, in a United States court sitting in the same state;' and the reporter further states that Mr. Justice MILLER, in a case in the Minnesota circuit, 'intimated his inclination to the opinion that where the parties are identical, and the scope of the subject-matter equally so, the pendency of a prior suit in the state court, within the territorial limits of the district where the second suit is brought in the federal court, may be properly pleaded in...