Simmons v. Superior Court in and for Los Angeles County

• Decision Date: 17 February 1950
• Parties: , 19 A.L.R.2d 288 . Civ. 17420. District Court of Appeal, Second District, Division 3, California
• Court: California Court of Appeals Court of Appeals

Page 844

214 P.2d 844

96 Cal.App.2d 119, 19 A.L.R.2d 288

SIMMONS v. SUPERIOR COURT IN AND FOR LOS ANGELES COUNTY.

Civ. 17420.

District Court of Appeal, Second District, Division 3, California.

Feb. 17, 1950.

Rehearing Denied March 6, 1950.

Hearing Denied April 17, 1950.

Gibson, Dunn & Crutcher, Sherman Welpton, Jr., Los Angeles, for petitioner.

Joseph Scott, Los Angeles, for real party.

No appearance for respondent.

VALLEE, Justice.

Petitioner seeks a writ of prohibition to restrain the Superior Court of the County of Los Angeles from taking any further proceedings in an action entitled 'Frank A. Simmons v. Mrs. Frank A. Simmons, et al.,' No. 555768, until the final determination of an action pending in the District Court of Harris County (Houston), Texas, entitled 'Helene Simmons v. Frank A. Simmons,' No. D-363483. Petitioner Helene Simmons, referred to as the 'wife', is the same person as Mrs. Frank A. Simmons. Frank A. Simmons is referred to as the 'husband.'

February 10, 1949, the wife commenced an action against the husband in the District Court of Harris County, Texas. In her petition she prayed for (1) a divorce; (2) a restraining order enjoining the husband from withdrawing funds from certain corporations, all of the stock of which was alleged to be owned by her, and from disposing of any of said stock; (3) a determination of property rights between the wife and the husband; (4) the appointment of a receiver of the stock and seals of the corporations; (5) an accounting; and (6) general relief. The same day the Texas court appointed a receiver to take charge of 'all stock certificates now in the possession of the Defendant, or under his control, and the corporate seals of the following corporations: Wynn-Crosby Drilling Company, Crosby Drilling Corporation, and A. W. Crosby, Inc.,' and issued an order restraining the husband from using the stock certificates in said corporations for any purpose. Later the wife filed an amended petition praying also (1) for a decree adjudging specified property to be the separate property of the wife and that the husband has no right, title or interest therein, (2) that she recover from the husband all of her stocks and other property and all money owing by him to her, and (3) that a lien be impressed upon all property of the husband to secure such obligations, and for foreclosure of the lien.

February 15, 1949, the husband commenced an action against the wife in respondent court. In his complaint he alleged he is the owner of an undivided half interest in certain stock issued to the wife (being all of the stock alleged by the wife in the Texas action to be her separate property), in United States Savings Bonds issued to the wife, in bank accounts in the name of the wife, in safe deposit box contents (the safe deposit boxes being in the name of the wife), and in two parcels of real estate located in California standing of record in the name of the wife. He alleged that the property stands for convenience in the sole name of the wife, and that the wife claims the entire interest thereof adverse to him. He prayed that the court declare and decree the rights and duties of the parties in respect to each other and 'in respect to, in, under or upon the property.' Upon the filing of the complaint the stock certificates and savings bonds were deposited with the clerk of the court.

March 26, 1949, the wife appeared in the California action by filing an answer.

May 2, 1949, the husband appeared in the Texas action by filing a plea in abatement and an answer.

July 26, 1949, upon motion of the wife, the California action was removed to the United States District Court for the Southern District of California. The removal was based on the allegation of the husband in his complaint that he is a resident of California and of the wife in her answer that she is a resident of Texas.

September 23, 1949, after a petition to remand by the husband and a contest thereof, the California action was remanded to the state court for the reason that diversity of citizenship did not exist. The United States court expressly found and decreed that at the time of the commencement of the California action, and at all times since, the husband and the wife were residents of Texas.

October 17, 1949, the wife moved respondent court for an order staying all further proceedings in the California action until the final determination of the Texas action. Her motion was denied. This proceeding followed.

Petitioner bases her petition upon the grounds (1) the Texas court acquired prior jurisdiction over the persons and subject matter of the case, its authority continues until the matter is completely and finally disposed of, and the California court should not interfere with the Texas court's action; and (2) the California court, as a matter of comity, should stay proceedings in the California action pending final determination of the Texas action which will be determinative of the issues involved in the California action.

It is settled California law that the pendency of a prior action in a court of competent jurisdiction, predicated on the same cause of action and between the same parties, constitutes good ground for abatement of a later action within the same jurisdiction either in the same court or in another court having the jurisdiction, 1 Cal.Jur. 23, sec. 4; and it is held that the first court to assume and exercise jurisdiction in a particular case acquires exclusive jurisdiction and prohibition lies to restrain another court from proceeding if it is threatening to do so. Browne v. Superior Court, 16 Cal.2d 593, 597, 107 P.2d 1, 131 A.L.R. 276; Myers v. Superior Court, 75 Cal.App.2d 925, 930, 172 P.2d 84; Rilcoff v. Superior Court, 50 Cal.App.2d 503, 123 P.2d 540; Wright v. Superior Court, 43 Cal.App.2d 181, 183, 110 P.2d 529.

The rule which governs in the case at bar is that which applies between courts of different states.

Petitioner did not seek an 'abatement' of the California action. She merely sought a 'stay of proceedings.' While an 'abatement' and a 'stay of proceedings' are in some respects similar, they are not identical. To abate a suit is to put an end to its existence. Dodge v. Superior Court, 139 Cal.App. 178, 181, 33 P.2d 695, 34 P.2d 501. Abatement is ordinarily a matter of right. The general rule is that the 'pendency of a prior suit in one state cannot be pleaded in abatement or in bar to a subsequent suit in another state even though both suits are between the same parties and upon the same cause of action.' 1 Am.Jur. 42, sec. 39. However, 'the court in which the second action is brought may in its discretion stay or suspend that suit, awaiting decision in the first one, or, influenced by a spirit of comity, may refuse to entertain it, if the same relief can be awarded in the prior suit.' 1 Am.Jur. 44, sec. 39. In Dodge v. Superior Court, 139 Cal.App. 178, 33 P.2d 695, 34 P.2d 501, the superior court had stayed proceedings in an action until the final determination of an action first commenced and pending in the state of Washington between the same parties and involving the same subject matter. A writ of mandate was sought to compel the superior court to proceed with the trial of the action. In denying the writ, the court stated, 139 Cal.App. at pages 181-182, 33 P.2d at page 696, 34 P.2d 501: 'While it is unquestionably the law that the pendency of a prior action in another state between the same parties, involving the same cause of action, does not entitle a party as a matter of right to an abatement of a second suit, we think it is equally true that it is within the discretion of the court in which the second action is pending to stay the same until after the decision of the first (Beneke v. Tucker, 90 Or. 230, 176 P. 183), and that the principle of comity between the states calls for the refusal on the part of the courts of this state to proceed to a decision before the termination of the prior action (Sulz v. Mutual Reserve Fund Ass'n, 145 N.Y. 563, 40 N.E. 242, 28 L.R.A. 379); and in our opinion the fact that the first case, as here, after a long trial, has resulted in a decision on the merits which is before the Supreme Court of the state on appeal, would make a refusal to so stay the second action almost an abuse of discretion by the trial court.' On a later appeal after the Washington judgment had been affirmed on appeal, it was held that it was res judicata and binding on the plaintiff in the California action. Canfield v. Scripps, 15 Cal.App.2d 642, 59 P.2d 1040.

In conformity with the rule of comity a federal court 'which first takes the subject-matter of a litigation into its control, for the purpose of administering the rights and remedies with relation to specific property [mining claims], obtains thereby jurisdiction so to do, to the exclusion of the exercise of a like jurisdiction by other tribunals [a California court], the powers of which are sought to be invoked by parties or their privies to the original action.' Cutting v. Bryan, 206 Cal. 254, 257, 274 P. 326, 327, certiorari denied 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 611. California courts are not warranted in taking jurisdiction of a proceeding to remove a trustee where a proceeding to remove the trustee is first commenced in Arizona where the trustee was appointed and 'when it [the California court] assumes to act, it is acting improperly and in excess of its rightful authority.' Schuster v. Superior Court, 98 Cal.App. 619, 628, 277 P. 509, 513. The fruits of the recognition of the rule of comity 'have been so beneficient, when applied to courts of concurrent jurisdiction created by different sovereignties, as to justify the conclusion that it is not only a rule of comity, but one of necessity.' Phelps v. Mutual Reserve Fund Life Ass'n., 6 Cir., 112 F. 453, 465, 61 L.R.A. 717, and 'a court should ordinarily decline to entertain jurisdiction of the issue under the doctrine of...