Schmidt v. Posner

• Decision Date: 05 April 1906
• Parties: SCHMIDT ET AL. v. POSNER ET AL.
• Court: Iowa Supreme Court

130 Iowa 347

106 N.W. 760

SCHMIDT ET AL.

v.POSNER ET AL.

Supreme Court of Iowa.

April 5, 1906.

Appeal from District Court, Cass County; O. D. Wheeler, Judge.

A verdict for the plaintiffs was set aside and a new trial granted. The plaintiffs appeal. Affirmed.J. B. Rockafellow and F. P. Sadler, for appellants.

Bruce & Ziegler, for appellees.

LADD, J.

The action by plaintiff was to recover moneys collected by Posner & Myers for suits of clothing furnished them in pursuance of a contract between the parties and for the value of certain samples. The counterclaim was for damages alleged to have been suffered by Posner & Myers owing to plaintiff's refusal to fill certain orders in accordance with the terms of said contract. By way of plea in abatement, the plaintiff alleged the pendency of a suit by Posner & Myers against the plaintiff in the superior court of Cook county, Ill., a court of general jurisdiction, wherein the identical damages sought to be recovered in the counterclaim were demanded. In the trial the pendency of the action in Illinois was proven as alleged, and owing to this the trial court refused to submit the issues raised in the counterclaim to the jury. On account of this error a new trial was granted. That it was an error is fully established by the authorities.

1. The doctrine that a subsequent action may be abated by the pendency of a prior one between the same parties for the same cause does not apply where the prior action is pending in the courts of another state or in a foreign country. Hatch v. Spofford, 22 Conn. 485, 58 Am. Dec. 433; Goodall v. Marshall, 11 N. H. 88, 35 Am. Dec. 472;Smith v. Lathrop, 44 Pa. St. 326, 84 Am. Dec. 448, and note; Mutual Life Insurance Co. v. Harris, 96 U. S. 588, 24 L. Ed. 737. See cases collected in 1 Cyc. 36. The reasons for this are well stated in the first-cited case: “Every country or state is entirely sovereign and unrestricted in its powers, whether legislative, judicial, or executive, and hence does not acknowledge the right of any other nation to hinder its own sovereign acts and proceedings. Nor will the courts of one country take notice of the courts of another, nor of its laws, or rules for the administration of justice; and therefore the courts of a country where a second suit is brought will not dismiss a suitor merely because initiatory steps have been taken elsewhere. It may be cause for staying proceedings; but to abate a suit is to put a final end to its existence. Should it do this, it might learn too late that no adequate remedy can be had elsewhere. That country is undutiful and unfaithful to its citizens which sends them out of its jurisdiction to seek justice elsewhere. We need not repeat, that from necessity it does not know what is practicable in a foreign jurisdiction; what the mode of trial there, the rules of evidence, the statutes of limitation; or what the kind of judgment and satisfaction, and whether, if satisfaction is to be had at all, it may not be on terms prescribed by laws favoring chiefly the interests of the debtor. This is so, even in some of these states; how much more may it be so in other states and countries. Besides, the expense, uncertainty, and delay incident to a trial abroad, perhaps in a...