Woren v. Witherbee, Sherman & Co.

• Decision Date: 28 March 1917
• Citation: 240 F. 1013
• Court: U.S. District Court — Northern District of New York
• Parties: WOREN v. WITHERBEE, SHERMAN & CO. KUZMAN v. SAME.

240 F. 1013

WOREN v. WITHERBEE, SHERMAN & CO.

KUZMAN v. SAME.

United States District Court, N.D. New York.

March 28, 1917

Stokes & Owen, of Port Henry, N.Y. (H. E. Owen, of Port Henry, N.Y of counsel), for the motion.

Grant &amp Wager, of Utica, N.Y., opposed.

RAY District Judge.

It would seem to be the law that a person having a cause of action, or claiming to have a cause of action, against a defendant, may bring suit thereon in the state court, proper county, and also in the United States District Court, proper district. The pendency of the one suit in the one court is not a bar to the suit in the other or to its prosecution. This assumes, of course, that for purposes of jurisdiction in the United States court there is the necessary diversity of citizenship and amount in controversy. Here it is conceded that in each suit more than $3,000, exclusive of interest and costs, is involved and in dispute, and that there is the necessary diversity of citizenship. No property has been seized or taken possession of by either court in either action. Each action is to recover damages for alleged negligence of the defendant. Each of the above-named plaintiffs brought his action in the state court, and thereafter without trial in the state court, and without discontinuing his suit in that court, brought action for the same cause in the United States District Court, Northern District of New York.

In each case the defendant asserts that it should not be harassed by the pendency of the case in the state court and also the pendency of the case on the same cause of action in the United States court, and that the plaintiff, he having first sued in the state court should either discontinue in the state court or be enjoined by the United States District Court from further prosecuting the case in such District Court until a trial, determination, and judgment in the state court. But both courts have jurisdiction of this cause. If the federal court enjoins the plaintiff in its court from proceeding further, it is refusing to exercise its own power and jurisdiction and in effect surrendering it to the state court. This the federal court cannot do, unless there is property or property rights involved, which is the subject of the litigation and the custody of which is in the state court. As I understand the rule, when there is a res and the one court having jurisdiction has taken possession (in effect) of that res, and is proceeding to hear the case and adjudicate regarding it, the other court of concurrent jurisdiction will not exercise its jurisdiction regarding or over that subject-matter as to the same questions. This proceeds on the doctrine of comity, and not because of want of jurisdiction in the first instance. Thus in Rickly Land & Cattle Co. v. Miller & Lux, 218 U.S. 258, 262, 31 Sup.Ct. 11, 13 (54 L.Ed. 1032), the court held:

'Where riparian rights of several parcels of land in different states, but on the same river, are involved, the courts of both states have concurrent jurisdiction, and the court first seized should proceed to determination without interference.'

In the opinion the court said:

'We are of opinion, therefore, that there was concurrent jurisdiction in the two courts, and that the substantive issues in the Nevada and California suits were so far the same that the court first seized should proceed to the determination without interference, on the principles now well settled as between the courts of the United States and of the states. Prout v. Starr, 188 U.S. 537, 544 (23 Sup.Ct. 398, 47 L.Ed. 584); Ex parte Young, 209 U.S. 123, 161, 162 (28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764).'

In Harkrader v. Wadley, 172 U.S. 148, 164, 19 Sup.Ct. 119, 125 (43 L.Ed. 399), the court held:

'When a state court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted; and this rule applies alike in both civil and criminal cases.'

This is also expressly stated in the opinion in the case, citing Freeman v. Howe, 24 How. 450, 16 L.Ed. 749; Buck v. Colbath, 3 Wall. 334, 18 L.Ed. 257; Taylor v. Taintor, 16 Wall. 366, 21 L.Ed. 287; Ex parte Crouch, 112 U.S. 178, 5 Sup.Ct. 96, 28 L.Ed. 690.

If this broad statement applies in cases where an action has been commenced first in the state court in an action to recover damages for negligence, and later in the United States District Court by the same plaintiff against the same defendant on the same precise cause of action, and no property has been attached, then the United States District Court must suspend all action until the parties have in some manner disposed of the case pending in the state court. If this be the law, then in a case to recover a judgment for damages for negligence the pendency of a former action for the same cause between the same parties in the state court is, in effect, a bar to the further prosecution of a suit between the same parties on the same cause of action subsequently brought in the United States court, no property having been attached or seized.

But I do not so understand the case or rule intended to be stated. In Palmer v. Texas, 212 U.S. 118, 125, 29 Sup.Ct. 230, 232 (53 L.Ed. 435), the court said:

'If the state court had acquired jurisdiction over the property by the proceedings for the appointment of its receiver, and had not lost the same by the subsequent proceedings, then, upon well-settled principles, often recognized and enforced in this court, there should be no interference with the action of the state court while thus exercising its authorized jurisdiction. The federal and state courts exercise jurisdiction within the same territory, derived from and controlled by separate and distinct authority, and are therefore required, upon every principle of justice and propriety, to respect the jurisdiction once acquired over property by a court of the other sovereignty. If a court of competent jurisdiction, federal or state, has taken possession of property, or by its procedure has obtained jurisdiction over the same, such property is withdrawn from the jurisdiction of the courts of the other authority as effectually as if the property had been entirely removed to the territory of another sovereignty. Wabash Railroad v. Adelbert College, 208 U.S. 38, and previous cases in this court cited therein at page 54 (28 Sup.Ct. 182, 187, 52 L.Ed. 379).'

In this Wabash Railroad Case the court held that:

'The taking possession by a court of competent jurisdiction of property through its officers withdraws that property from the jurisdiction of all other courts, and the latter, though of concurrent jurisdiction, cannot disturb that possession, during the continuance whereof the court originally acquiring jurisdiction is competent to hear and determine all questions respecting the title, possession, and control of the property. ' (Italics mine.)

In McClellan v. Carland, 217 U.S. 268, 282, 30 Sup.Ct 501, 505 (54 L.Ed. 762), it was expressly held that the pendency of a suit in the state court is no bar to proceedings concerning the same matter in a federal...