Simon v. Pyrites Company, Ltd.

• Decision Date: 09 March 1925
• Citation: 128 A. 370,32 Del. 581
• Court: Delaware Superior Court
• Parties: ELWOOD SIMON v. THE PYRITES COMPANY, LTD., a corporation existing under the Laws of the United Kingdom of Great Britain

128 A. 370

32 Del. 581

ELWOOD SIMON v. THE PYRITES COMPANY, LTD., a corporation existing under the Laws of the United Kingdom of Great Britain

Superior Court of Delaware, New Castle County

March 9, 1925

Superior Court for New Castle County, January Term, 1925.

Demurrer to plea in abatement, No. 194, September Term, 1924.

The declaration shows that this is an action for damages alleged to have been sustained by the plaintiff by the emission of injurious gases, odors, fumes, smoke and substances from the nearby manufacturing establishment of the defendant. It is alleged that the plaintiff is a farmer and that his use and enjoyment of his farm has been interfered with and his produce and stock have been destroyed or injured by the means aforesaid. To this declaration a plea in abatement has been filed setting forth that there is now pending in the Court of Chancery of this state a proceeding instituted by Sarah Simon and Elwood Simon against the defendant company; that in said action Sarah Simon was alleged to be the landlord and Elwood Simon the tenant; that in said chancery proceedings the complainants prayed that the business of the defendant company might be declared a nuisance and that the defendant company might be restrained by injunction from continuing the nuisance. The bill in chancery also prayed that an accounting might be had of the loss and injury sustained by each of the complainants by reason of the past acts of the defendant and the defendant decreed to pay the amount found to be due. The plea in abatement also alleged the identity of the plaintiff in the present action and of the real estate involved and that the cause of action sought to be enforced in this action is the same as that set forth in the bill of complaint in the Court of Chancery. To this plea in abatement a general demurrer has been filed by the plaintiff.

The demurrer is sustained.

William S. Hilles for plaintiff.

J Ernest Smith, Robert H. Richards and Daniel O. Hastings for defendant.

RODNEY J., sitting.

OPINION

RODNEY, J.

The demurrer, of course, admits all the well pleaded allegations of the plea. This presents the plain and narrow question of whether, in this state, a pending cause in the Court of Chancery for an injunction in which damages are also asked can be pleaded in abatement to an action in the Superior Court between the same parties and for the same subject-matter in which damages alone are sought. I shall not pause to consider the general proposition that it is a sufficient ground for abating a suit that another suit is pending in the same jurisdiction for the same cause of action and between the same parties. That proposition is so well established that it needs no citations to support it, and I shall at once pass to the application of this principle to the distinct jurisdictions of equity and law. The general rule is founded upon the sound doctrine that a court will not allow a defendant to be vexatiously proceeded against and a second suit under all the same circumstances as the first and in the same jurisdiction is necessarily considered as vexatious. The concern of the Court, however, is not confined to the behalf of the defendant, but extends to the plaintiff also, and the latter's right in pursuing his several remedies will not be unduly circumscribed.

There can be no question but that the authorities generally lay down the proposition that a suit pending in a court of equity cannot be pleaded in abatement of a subsequent action at law. 1 Enc. Pl. & Pr. 751; Blanchard v. Stone, 16 Vt. 234; Hatch v. Spofford, 22 Conn. 485, 58 Am. Dec. 433; Colt v. Partridge, 7 Met 575; Balck v. Lackey, 41 Ky. 257, 2 B. Mon. 257; Graham v. Meyer, 4 Blatchf. 129, 10 F. Cas. 932, F. Cas. No. 5673; Paul v. Hulbert, F. Cas. No. 10,841; So. Ry. Co. v. Hayes, 183 Ala. 465, 62 So. 874; Billups v. Gilbert, 180 Ala. 437, 61 So. 901; Jarrett v. Halsey, 244 F. 392, 157 C. C. A. 18; Risher v. Wheeling R. & C. Co., 57 W.Va. 149, 49 S.E. 1016; Rees v. Emmons Coal Co., 88 W.Va. 4, 106 S.E. 247; Thorne v. Towanda Tanning Co. (C. C.), 15 F. 289, 291; Peak v. Bull, 47 Ky. 428, 8 B. Mon. 428; Kittredge v. Race, 92 U.S. 116, 23 L.Ed. 488; L. R. A. 1918A, 31; Murphy v. Cadell, 2 Bos. & P. 137, 126 Eng. Rep. 1200.

A few extracts from these cases will indicate the fixed character of the judicial opinion on the subject.

In Hatch v. Spofford, supra, it is said:

"No case has been cited by defendant's counsel (and his elaborate researches would have found them, if in the books) of a bill in equity, pleaded in abatement to an action at law, or vice versa, even though the general object of both suits be, the attainment of the same object."

In Blanchard v. Stone, supra, the Court said:

"A plea in abatement of the suit at law is novel, and without precedent or authority, and should not be sustained."

In Seeley v. Missouri, K. & T. Ry. Co. (C. C.), 39 F. 252, it is said:

"It has never been decided that the pendency of a prior suit in equity is a good plea in abatement to a subsequent suit at law between the same parties."

In Griswold v. Bacheller (C. C.), 77 F. 857, the Court said:

"It has been held by cases both at law and in equity that two causes, one at law, one in equity, are ex necessitate so dissimilar that the pendency of one cannot be pleaded in abatement of the other."

A careful analysis of the reasons underlying the rule that an action at law will not abate by reason of the pendency of a proceeding in chancery will, I think, demonstrate its correctness. The general rule that a second suit, under the conditions mentioned, abates because of the pendency of the first suit is based upon the presumption that the second suit is vexatious. It is not a rule of unbending rigor but one of justice and expediency. The presumption that the second suit is vexatious may not be indulged in when one suit is in equity and the other at law. The jurisdiction of the two Courts is, in general, not the same, their proceedings are entirely different and the relief granted by the one bears no certain analogy to that of the other. In a proceeding at law the costs of the proceeding depend upon the outcome or event of the litigation, while at equity they may be imposed even upon the successful party if such an imposition of costs seems equitable to the Chancellor. In Story's Equity Pleadings, § 742, it is said:

"That it can scarcely ever occur, that the remedial justice, and the grounds of relief, are precisely the same in each Court."

This author holds that the pendency of an action at law for the same subject-matter cannot be successfully urged in abatement in a subsequent suit in equity.

In Delaware the jurisdiction of the Court of Chancery is entirely distinct from the jurisdiction of the law courts and is separately administered by the Chancellor. The jurisdiction and powers of the Court of Chancery are outlined in Section 3844 of Revised Code 1915, which section concludes with this paragraph:

"Provided, that the Chancellor shall not have power to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other court, or jurisdiction, of this state; but that where matters, determinable at common law, shall be brought before him in equity, he shall remit the parties to the common law; and when matters of fact, proper to be tried by a jury, shall arise in any cause depending in chancery, the Chancellor shall order such facts to trial by issues at the bar of the Superior Court."

This limitation has been said to be merely declaratory of that which had existed from the earlier times irrespective of statutes. Kahn v. Orenstein, 12 Del.Ch. 344, 114 A. 165.

It will be seen from the copy of the bill originally filed in the Court of Chancery, and appearing in the plea in abatement that the complainants prayed that the business of the defendant be decreed a nuisance and for an injunction perpetually restraining the defendant from the continuance of such nuisance. That the granting of an injunction is a matter of equitable jurisdiction there can be no question. Equally well settled in this state is the further right of the Court of Chancery when it has once obtained jurisdiction of a cause of purely equitable cognizance, as by injunction, to decree as incidental to the main relief, such...