Wade v. Clower

• Decision Date: 31 October 1927
• Citation: 94 Fla. 817,114 So. 548
• Parties: WADE et al. v. CLOWER. [*]
• Court: Florida Supreme Court

114 So. 548

94 Fla. 817

WADE et al. v. CLOWER. ^[*]

Florida Supreme Court, Division A.

October 31, 1927

Suit by Eugene Clower, as administrator of and for the estate of M D. Clower, deceased, against Neill G. Wade and another, as surviving partners of Wade, Clower & Wade, for an accounting and a settlement of the partnership and for an injunction. From a decree for the complainant for costs and attorneys' fees, defendants appeal.

Affirmed.

Syllabus by the Court

SYLLABUS

Where state and federal courts have concurrent jurisdiction tribunal whose jurisdiction first attaches may determine controversy; where state and federal courts have concurrent jurisdiction, court whose jurisdiction first attaches continues until judgment is satisfied, in first action, and court may decide every issue, including ancillary or incidental proceedings. Where a state and federal court have concurrent jurisdiction over the same parties or privies and the same subject-matter, the tribunal where jurisdiction first attaches retains it exclusively and will be left to determine the controversy and to fully perform the exhaust its jurisdiction and to decide every issue or question properly arising in the case. This jurisdiction continues until the judgment rendered in the first action is satisfied and extends to proceedings which are ancillary or incidental to the action first brought.

State or federal court's jurisdiction which has once attached cannot be taken away by subsequent proceedings in the other court; generally, state or federal court in which second action is brought suspends proceedings until first action is tried and determined in other court. Where the jurisdiction of a state or a federal court has once attached, it cannot be taken away or arrested by proceedings subsequently instituted in the other court; but the usual practice is for the court in which the second action is brought not to dismiss such action, but to suspend proceedings therein until the first action is tried and determined.

That judgment was obtained after commencement of suit in which it is pleaded does not prevent its being bar; first judgment for same cause of action constitutes effective defense regardless of order of time of commencing suits; prior judgment on same cause of action sustains plea of former recovery, although recovered in action commenced subsequent to one in which pleaded. The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order of time in which the suits were commenced. Hence it even follows that a prior judgment upon the same cause of action sustains the plea of a former recovery although the judgment is in an action commenced subsequent to the one in which it is pleaded.

Final judgment in either state or federal court in suit on same cause of action between same parties is conclusive in other, regardless of which suit was first commenced. Where suits upon the same cause of action and between the same parties are pending simultaneously in a state court and in a federal court, a final judgment entered in either court will be binding and conclusive in the other, without any regard to the question which suit was first commenced.

Valid judgment on merits in former suit between same parties or privies on same cause of action concludes every matter litigated and every other matter which might have been litigated. A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive, not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Generally, costs of suit for partnership accounting, including fees of experts and attorneys, are payable out of partnership estate; generally, if partnership estate is insufficient, partners are liable for costs in suit for accounting, including fees of experts and attorneys; in suit for partnership accounting, court may exercise discretion in awarding costs. As a rule the costs of a suit for a partnership accounting, including the fees of experts and of attorneys, are to be paid out of the partnership estate, or, if this is insufficient, they are to be borne by the partners in proportion to their respective partnership shares. But, as in other equity suits, the court may exercise discretion in the award of costs, and it not infrequently charges the entire costs to one or some of the partners, either as a sort of punishment for misconduct, or because he has needlessly forced or prolonged the litigation, or because for some other reason the court concludes that justice demands it.

In suit for partnership accounting, state court may adjudicate all matters not adjudicated by federal court; in suit for partnership accounting state court may adjudicate question of solicitors' fees and court costs, not adjudicated by federal court's decree in similar case. Where the defendants in a suit in equity in the state court for an accounting and settlement of a partnership, pending such suit, bring suit against the complainant in the federal court upon the same cause of action and procure a decree therein which does not specifically adjudicate the matter of solicitors' fees and court costs in the suit pending in the state court, which latter court had priority of jurisdiction, the state court, the exercise of whose jurisdiction to finally determine the entire cause of action has been thus anticipated and interrupted, may go on to a complete adjudication of all matters within the scope of the issues of the cause pending therein or appropriately incidental thereto that have not been settled and adjudicated in the decree already procured in the federal court, and certainly so as to such matters as the allowance of solicitors' fees and court costs in that case, which are peculiarly within the power of the state court to fix and determine. Appeal from Circuit Court, Alachua County; A. V. Long, Judge.

COUNSEL

H. L. Anderson, of Jacksonville, for appellants.

Hampton & Hampton, of Gainesville, for appellee.

Neill G. Wade and Neill G. Wade, Jr., and M. D. Clower for some years composed the firm of Wade, Clower & Wade, which was engaged in general railroad construction business. Mr. M. D Clower died, and the business of the firm was carried on by the surviving partners, assisted by Dr. Eugene Clower, brother and administrator of the estate of the deceased partner, until a certain construction contract was completed. The surviving partners and the administrator of the deceased partner were not able to make an amicable settlement of the partnership affairs. In fact, considerable suspicion and distrust appears to have arisen between the parties. There were several different suits between them, growing out of disputes with regard to partnership matters, before the instant suit was brought by Dr. Clower against the two surviving partners in the circuit court of Alachua county for an accounting and settlement of the partnership, and, incidentally, for an injunction against the sale of certain personal property of the partnership. This suit by the administrator for an accounting and settlement of the partnership matters was removed by the defendants to the federal court upon the ground of diversity of citizenship, Dr. Clower being a citizen of Georgia, but on motion of the complainant the cause was remanded to the state court. The defendants, Neill G. Wade, Sr., and Neill G. Wade, Jr., filed both a demurrer and answer to the bill, and, upon the demurrer being overruled, took an appeal to this court with supersedeas. After defendants' demurrer to the bill had been overruled and exceptions to their answer had been sustained, and after the suit had been pending in the state court for about two months, the defendants filed a bill in the federal court against the complainant in the state court suit for an accounting and settlement of the partnership affairs. The defendant, Clower, moved the federal court for a stay of proceedings in that case on account of the pendency of the suit in the state court involving the same subject-matter, but this motion was denied. The complainants in the federal court proceedings pressed this suit to a hearing, with the result that testimony was taken and an accounting had, and a final decree rendered before any further action of importance was taken in the proceedings in the state court. Meanwhile the orders that had been appealed from in the state court suit had been affirmed by this court. In his opinion in connection with his final decree, the federal judge remarked that he was 'somewhat at a loss to know why the estate could not have been settled in the suit by the administrator of the deceased partner (referring to the suit in the state court), which would have made the present suit unnecessary.'

In the final decree rendered in the federal court against the administrator of the deceased partner, certain attorneys' fees amounting to $6,000 incurred by the surviving partners in the several suits between them and the administrator of the deceased partner in the state courts, preceding and not including the instant suit, were charged against the defendant administrator. After reviewing the various suits between the parties, and charging attorneys' fees incurred by the surviving partners, as above mentioned, against the administrator of the deceased partner, the federal judge decreed that each of the parties in the suit in the federal court should be required to...