Wilson v. Milliken

• Citation: 103 Ky. 165,44 S.W. 660
• Parties: WILSON v. MILLIKEN.
• Decision Date: 11 February 1898
• Court: Court of Appeals of Kentucky

44 S.W. 660

103 Ky. 165

WILSON v. MILLIKEN.

Court of Appeals of Kentucky.

February 11, 1898

Appeal from circuit court, Jefferson county.

"To be officially reported."

Action by George W. Wilson against A. B. Milliken. From a judgment sustaining a demurrer to the reply, plaintiff appeals. Reversed.

Du Relle, J., dissenting.

Morris B. Gifford and Abbott & Rutledge, for appellant.

Barnett Miller & Barnett, for appellee.

WHITE J.

This action was brought by appellant for damages. One thousand nine hundred dollars was claimed for an injury. The petition was filed August 22, 1895. Appellee filed an answer which developed the fact that this same appellant had theretofore brought an action for the same injury in the Jefferson circuit court, claiming damages in the sum of $5,000, and that this first case had, on petition, been transferred to the United States circuit court by appellee, and that this suit at the date of filing the answer was pending and undetermined in the circuit court for the United States for the district of Kentucky, and at Louisville, Jefferson county. There are other defenses pleaded in the answer, but as the case was determined by the court below on the sufficiency of this plea in abatement, the other defenses pleaded need not be stated. To this plea of another suit pending, as well as to the whole answer, appellant replied. That part affecting this plea is an admission that at the date of filing the answer there was another suit pending in the United States circuit court, but same had been dismissed and is not now pending. Appellee demurred to the third paragraph of appellant's reply; being that portion that replies to the plea in abatement. The court on a trial of this demurrer sustained same, and appellant amended this paragraph of the reply, and again a demurrer was submitted to the reply as amended, which the court sustained; and appellant declining to plead further, the court dismissed the petition. From that judgment this appeal is prosecuted.

The reply, as amended, to which a demurrer was sustained, admitted that at the date of filing the plea in abatement there was then existing and undetermined another suit for the same cause of action in the United States circuit court for the district of Kentucky, which case was originally brought in the Jefferson circuit court, and by petition of appellee transferred to the federal court. The question presented is, was that a bar to this action? It is conceded by counsel for appellant, in their brief, that if the United States circuit court for the district of Kentucky is to be treated as the state circuit courts, or as domestic courts, the plea in abatement, as filed, is sufficient; but, on the other hand, they contend that the circuit court of the United States sitting for the district of Kentucky is to be treated as a foreign jurisdiction, like the courts of the other states, and that, therefore, the plea in abatement filed is in itself insufficient. This question has never been passed on by this court, so far as we have been able to find.

In the case of Gordon v. Gilfoil, 99 U.S. 169, the supreme court of the United States, by Justice Bradley, after deciding that the action in the federal circuit court was not the same as in the former action in the state circuit court and overruling the plea in abatement filed in the United States circuit court on that ground, proceeds: "It may be proper here also to observe, although the point was not pressed in the argument, that the exception to the jurisdiction of the circuit court is destitute of foundation. The suggestion was that, as the proceedings in order of seizure and sale were still pending in the district court, the debt could not be prosecuted in the circuit court of the United States. But it has been frequently held that the pendency of a suit in a state court is no ground even for a plea in abatement to a suit upon the same matter in a federal court. What effect the bringing of this suit, via ordinaria, may have had on the order of seizure and sale, it is not necessary to determine. It is possible that it superseded it. But the pendency of that proceeding when the suit was commenced cannot affect the validity of the proceedings in this suit, nor the jurisdiction of the court in respect thereof." In the case of Pierce v. Feagans, 39 F. 587, in the United States circuit court for the Eastern district of Missouri, Thayer, J., says: "Again, the suit in the state court is pending in a different jurisdiction. It is now well settled that the pendency of a suit in a state court cannot be taken advantage of, by way of a plea of lis pendens, to defeat a suit of the same nature, and between the same parties, in the federal courts. The two courts, though not foreign to each other, belong to different jurisdictions, in such sense that the doctrine of lis pendens is not applicable;" citing Gordon v. Gilfoil, 99 U.S. 169; Stanton v. Embrey, 93 U.S. 554; Sharon v. Hill, 22 F. 28. The case of Stanton v. Embrey, 93 U.S. 554, cited by Thayer, J., does not support his opinion. In that case the action was brought in the supreme court of the District of Columbia, and the defendant pleaded in abatement the pendency of a former action for the same demand between the same parties in a court of the state of Connecticut. The precise question before the court was whether the pendency of an action in the state court of Connecticut was a bar to a subsequent action begun in the supreme court of the District of Columbia. The court there held that such action in the court of the state of Connecticut was not a bar to that action in the supreme court of the District of Columbia; citing, among others, Salmon v. Wootten, 9 Dana, 422, and Davis v. Morton, 4 Bush, 444. In the case of Hughes v. Elsher, 5 Fed. 263, in the United States circuit court for the district of New Hampshire, the court, by Lowell, C.J., said: "The pendency of the bill is pleaded in abatement. The plaintiff makes three objections to the plea, all of which must prevail: (1) It does not appear there is an action pending elsewhere. *** (3) That the pendency of an action in a state court within this circuit is not ground for abating one in this court is entirely settled by authority." In the case of Latham v. Chafee, 7 Fed. 520, before the United States circuit court for the district of Rhode Island, Colt, J. (with Lowell, J., concurring), said: "The main question which arises upon the defendant's plea is whether the pendency of a suit in a state court between the same parties, and involving the same subject-matter, can be pleaded in abatement or in bar to a suit in the circuit court of the United States. It is undoubtedly true, as a general rule, that, as between two courts of concurrent jurisdiction, that which first gets control of the litigation will be allowed to prosecute it to an end, and that consequently the pendency of another prior suit between the same parties, and involving the same subject-matter, may be pleaded in abatement of a subsequent suit in another court. But this rule does not extend to courts of foreign jurisdiction. It has been often held that the courts of a state are foreign, in this sense, to the courts of the United States;" citing Gordon v. Gilfoil, 99 U.S. 169, and Stanton v. Embrey, 93 U.S. 554. In the case of Sharon v. Hill, 22 F. 28, in the circuit court of the United States for the district of California, Sawyer, J., says: "An alleged valid and subsisting contract is therefore the basis and cause of one suit, and forgery and fraud the basis and cause upon which the other rests. These certainly do not constitute the same causes of suit. The causes of suit are clearly not identical. It is also bad on another ground,-that the suit set up is not pending in a court of the same jurisdiction. It is well settled by the supreme court of the United States that a suit pending in another jurisdiction for the same cause cannot be pleaded in abatement in a suit in the United States courts, and that the courts of the states and of the United States are different jurisdictions. 93 U.S. 548-558; 99 U.S. 169-178. Here are two jurisdictions,-jurisdictions of two distinct governments. One is state jurisdiction, and the other is the jurisdiction of a national court. If it were a fact that a suit is pending for the same cause in the state court,-a court of a different sovereign jurisdiction,-it would not abate the suit here. The plea is bad in substance on that ground, and this objection is taken in the replication. In the case of Washburn & Moen Mfg. Co. v. Scutt & Co., 22 F. 710, in the circuit court of the United States for the Western district of Pennsylvania, Acheson, J., said: "The jurisdiction of the court of common pleas is contested on the ground that, in the suit therein, service was made on a mere employé of the corporation, who, it would seem, is not an agent, within the meaning of the state statute relating to service of judicial process upon corporations; but, should that court hold the service to be good, still the present plea could not prevail, for several reasons. In the first place, Isaac L. Ellwood, a plaintiff here,-and properly so, as it seems to me,-is not a party to the suit in the common pleas. Again, the object of that suit is the rescission of the license contracts, whereas the purpose of this suit is the enforcement thereof. Clearly, the relief here sought is not attainable in the former suit. *** Finally, it has been held that the pendency of a prior suit in a state court is not a bar to a suit in a circuit court of the United States, although between the same parties and for the same cause of action. 93 U.S. 548; 99 U.S. 168; 22 F. 28. The plea must therefore be overruled, with leave to the defendant to answer within 30 days, and...