
    Case 22 — PETITION ORDINARY
    February 11.
    Wilson v. Milliken.
    APPEAL FROM JEFFERSON CIRCUIT COURT, LAW AND EQUITY DIVISION.
    1. Plea in Abatement' — Jurisdiction of Federal and State Courts. — The jurisdictions of the State courts and United States ■circuit courts held for the same States and within the same territory are domestic and not foreign to each other; and there* fore an action pending in the United States circuit court maybe pleaded in abatement of a subsequent action commenced between the same parties in a State court for the same subject matter and seeking the same kind of relief.
    2. Pleading — Abatement—Dismissal of Former Suit. — The objection that a former suit is pending is removed by the dismissal or discontinuance of that suit, even after a plea in abatement in the second suit, if the second action was not brought for vexatious purposes.
    M. B. GIFFORD and ABBOTT & RUTLEDGE for appellant.
    (Brief not in the Record.)
    BARNETT, MILLER & BARNETT for appellee.
    1. A plea in abatement that another action between the same parties, ■and upon the same facts was then pending and undisposed of, can not be defeated by the subsequent dismissal of the first action. Frogg’s Exrs. v. Long’s Admr., 3 Dana, 157; Gist v. Shean, 8 Ky. L. Rep., 509; Herndon v. Campbell, 9 Ky. L. Rep., 681; Draughn. v. Wolf, 11 Ky. Law Rep., 366; Civil Code, section 92. The only reply to such a plea is mil tiel record. Pitts & Conn. R. R. Co. v. Mt. Pleasant, &e., R. R., 76, Pa. St., 489; Meriam v. Baker, 9 Minn., 40.
    2. Where the first case has been removed from the State court to the Federal court, it is still pending within the same jurisdiction, and the rule applies, fíje parte Baleh, 3 McLean, 221; Hart v. Granger, 1 Conn., 154; Ralph v. Brown, 3 Watts & Serg, 399; Earl v. Raymond, 4 McLean, 233.
    
      3. Tlie plea in abatement was properly contained in tbe answer that ■embraced the other defenses. Civil Code, sec. 113, subsec. 2.
    4. The record of the Federal Court is conclusive as to what was done in the case pending there.
   JUDGE WHITE

delivered the opinion op the court.

This action was brought by appellant for damages for $1,900 claimed for an injury. The petition was filed August 22, 1895.

Appellee filed an answer which develops the fact that this same appellant had theretofore brought an action for the identical 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, in the United States Circuit Court, at the date of filing the answer, was then pending and undetermined in the Circuit Court for the United States, for the district of Kentucky,- and at Louisi ville, Jefferson county.

There are other defenses plead in the answer, but as the case was determined by the court below, on the sufficiency of this plea in abatement, the other defenses plead 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 the 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 his 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, that the plea in abatement as'filed, is sufficient, but on the other hand, contends 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 a 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 to the circuit court is destitute of foundation. The suggestion was that as the proceedings in the 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, can not affect the validity of the proceedings in this suit, nor the jurisdiction of the court in respect thereof.”

In the case of Pierce, etc., v. Feagans and Wife, 39 Federal Rep., 587, 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 can not be taken advantage of by way of a plea of Us 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 Us pendens is mot applicable.” Citing Gordon v. Gilfoil, 99 U. S., 169; Stanton v. Embrey, 93 U. S., 554; Sharon v. Hill, 22 Fed. Rep., 28.

The case of Stanton v. Embrey, 93 U. S., 554, cited by Thayer, does not support his opinion. In that case the action was 'brought in the Supreme Court of the District of Columbia, and the defendant plead 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 bario 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. Wootton, 9 Dana, 422, and Davis v. Morton, 4 Bush, 444.

In the case of Hughes v. Elsher, 5 Federal Reporter, 263, in the United States Circuit Court for the district of New 'Hampshire, the court, by Lowell, Ch. 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 Federal Reporter, 520, before the United States Circuit Court for the district of Rhode Island, Colt, D. 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 genera» 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 99 U. S., 169 and 93 U. S., 554.

In the. case of Sharon v. Hill, 22 Federal Rep., 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 can not 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 courts of 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 Fed. Rep., 710, in the Circuit Court of the United States for the Western district of Pennsylvania, Atcheson, 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 employe 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 suil m 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 Fed. Rep., 28. The plea must therefore be overruled with leave to the defendant to answer within thirty days, and it is so ordered.”

In the case of Oneida Co. Bank v. Herrenden, 101 N. Y., 173 (4 N. E. Rep., 332), the Court of Appeals of New York held that an action begun in the State court and by one defendant, the only one before the court, transferred to the United States Circuit Court, could not be plead in abatement to a second action begun in the State court on the-same cause of action, against another defendant.

In the case of Kilpatrick v. Kansas City & B. Railroad, 38 Nebraska, 620, the Supreme Court of Nebraska approves, 99 U. S., 168, by saying: “The mere pendency in the courts of another jurisdiction of an action between the same parties,, and' concerning the same subject matter, can not be successfully pleaded in bar or abatement.” Citing 99 U. S., 168; 93 U. S., 548; 22 Fed. Rep., 28, supra.

As to the converse of the proposition decided by the above' authorities, we find, that in the case of Earl v. Raymond, 4 McLean, 233, in the United States Circuit Court for the Seventh Circuit, Michigan, that court says: “That the pend-ency of a former suit, in a court having jurisdiction of the same, may be pleaded in abatement, is a principle well established. It is so held, to prevent a multiplicity of suits-being brought for the same cause. To tolerate the pendency of several suits, at the same time, for the same cause, would be a re-proach to the administration of justice. -Courts of justice were instituted to afford speedy, and effectual rem- • edie-s for the redress of wrongs, and not to afford a litigious person the means of oppression. ... It may be-laid down as a general rule of action for the Federal and State courts, that which ever Shall first take jurisdiction of a case, the jurisdiction of the other -may be defeated by a plea in abatement. And to avoid a conflict between the ¡ministerial officers of the Federal and State courts, the officer who first levies his execution, is entitled to a preference, the same as where both executions emanate from the State court or courts.”

In the case of Nelson v. Foster, 5 Bissell, 44, in the United States Circuit Court, district of Wisconsin, the court said: “The 'Objection that a suit pending in a court of the State is not the subject of a plea in abatement, in this court is not tenable. By the eleventh section of the act to establish the judicial courts of the United States, it is provided that the circuit courts shall have original cognizance, concurrent with the courts of the several States of all suits of a civil nature at common law or in equity, when the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars. It is too well settled by the courts of the United States to require citation of authority that in all eases when courts have concurrent jurisdiction, the court which first has possession of the subject must determine it •conclusively, and has exclusive jurisdiction. In this case, there were two attachments of the defendant’s property, and two writs served on them, and two suits pending against them at the same time. If such a proceeding were sanctioned, it would lead to great oppression and would be a reproach to the administration of justice. A party has his •choice of jurisdictions, 'but he can not claim both at the same time. This court has always adhered to the rule not to entertain jurisdiction of a case when we are informed by a plea in abatement that a prior suit in law or equity for the same subject matter, between the same parties, is pending in a court of the State; and such, I have no doubt, is the rule in every court in the United States. This court is not a foreign court to the courts of the State.”

In the case of Radford v. Folsom, 14 Fed. Rep., 97, in the Circuit Court for the United States, in Southern district of Iowa, the court, through Sidras, D. J., with MoOrory, C. J., and Love, D. J., concurring', say: “But it is urged that while the second of the rules as above given, may be applicable to cases pending in courts of the same State, yet it is inapplicable when one case is pending in. the State court and the other in the Federal courts for the same State, the argument being- that the two jurisdictions are foreign to each other, and hence that the pendency of a suit in one court can not be pleaded ini abatement of a suit in, the other. It is true that the State and Federal tribunals owe their origin to different sources, but when created and brought into< action within the same territorial limits, can it be fairly said that there are two States or jurisdictions co-existing within the same limits, and yet foreign to each other, in the sense that Iowa is foreign to New York? The same statutory and common law is enforced by both tribunals and it can not be said that if a party is relegated to the State court for the enforcement of his rights, that he is thereby sent into a foreign State or country, whose laws and modes of proceedings are unknown or unfamiliar. As we have already shown, the main purpose of the rule allowing the pendency of one aiction to be pleaded, under given circumstances, in abatement of a second, is to prevent a defendant from being unnecessarily harassed and subjected to additional costs by two proceedings, when one will fully protect all the rights of the plaintiff.

Now, it is apparent that the cost 'and vexation caused to the defendant by the institution of the second suit is, to say the least, not lessened by the fact that it is brought in the Federal while the first is pending in the State tribunal. The evil to be remedied is not obviated by the fact that the two proceedings are pending in tribunals, owing their origin, the one to the State, the other to the Federal government, yet acting within the same territorial limits.

If it appears that the two proceedings, being between the same parties, and for the enforcement or protection of the same rights, will result in the granting of the same remedy, operative within the same territorial limits, then it would seem clear that the second is not needed to protect or enforce the plaintiff’s rights, and as the defendant must, of necessity, be put to additional trouble and expense in defending the second action, it follows that he is thereby vexatiously harassed and, in such case, he should be enabled to protect himself by causing the abatement of the second a'ction. It is the duty alike of the State and the United States Court to protect a defendant from unnecessary and vexatious litigation. If the first action is brought in the State and the second in the Federal tribunal or vice versa, it is the bringing of the second action that constitutes the oppressive and unnecessary act on part of plaintiff, and" the corrective should, be applied in the court whose jurisdiction is invoked oppressively and wrongfully. Again, the fact that one action is pending in the State and the second in the Federal court, instead of being a reason why the second should not be abated, is, on the contrary, a weighty argument for just the opposite conclusion; for, if the two proceedings are allowed to proceed at the same time, there may arise all the difficulties from a conflict between the two jurisdictions, acting “within the same State.”

The question here presented is an entirely new one in Kentucky, and because of that we have given the matter considerable attention.

It will be noticed that in the case of Gordon v. Gilfoil, 99 U. S., 169, it was not necessary to a decision of that case to determine whether the Federal and State courts were foreign to each other, and consequently whether a plea of a former action pending in one court was sufficient in bar in the other court. The Supreme Court there expresses an opinion in that regard, but it could not be held to be authoritative.

The case of Stanton v. Embrey, 93 U. S., 554, though frequently cited in support of the doctrine that State and Federal courts are foreign, .so that a plea of a former action pending in one court is not good in the other, that case in our opinion does not so hold. The two courts compared ■were the Supreme Court of the District of Columbia, and a .court of the State of Connecticut. Not only a State and Federal court, buf sitting in entirely different jurisdictions, neither could enforce process within the other’s territory.

Upon these two cases, supra, the cases of Pierce v. Feagans and Wife, 39 Federal Rep., 587; Hughes v. Elsher, 5 Federal Rep., 263; Latham v. Chafee, 7 Federal Rep., 520; Sharon v. Hill, 22 Federal Rep., 28; Washburn & Moen Mfg. Co. v. Scutt & Co., 22 Federal Rep., 710, all in the Federal courts, and Kilpatrick v. Kansas City & B. Railroad, 38 Nebraska, 620, all depend for their authority and in no case do we find it reasoned out why it should be held that a State and Federal court are foreign to each other, so that a plea of ■ •a former action may not bar a subsequent action in the .other court. Án examination of all these cases shows that the cases that so hold were decided upon the authority of the dictum of Mr. Justice Bradley.

It seems to us that the jurisdiction of the State courts and United States circuit courts held for the States and within the same State are domestic.

Can it be said that the act of Congress providing for removal of cases from the State to the Federal courts authorizes a transfer to a foreign jurisdiction? We think not.

Can it be said that the Federal court held a-t Louisville, Ky., is foreign in jurisdiction to the circuit courts sitting in Louisville, Ky.? The same laws are administered, the process of each court covers in part the same territory and the law expressly authorizes certain cases to be transferred from one court to the other. Most assuredly, they are not foreign.

It seems to us that the reasoning in Radford v. Folsom, 14 Fed. Rep., 97, supra, is unanswerable.

It appears that learned counsel for appellant conceded this to be true, in the court below. When the plea in abatement was filed, they did not demur, but treating that as sufficient in law, unless avoided, filed a reply.

This reply, in effect, admits that when the answer was filed there were two actions pending for the same cause, one in the United States Circuit Court, and the other in the State Circuit Court, and it was plead in avoidance of this plea of former action, that at that time, when the reply was filed, the action in the United States Circuit Court had been dismissed absolutely, and that there was then but one action.

Under the old rule of pleading, this reply was bad on dernurrer, there was no replication to a plea of former action pending, but nul Uel record, and while we recognize that this rule has been followed in Kentucky in recent years, we think that to apply it in all cases, would be unjust. The more ¡modern rule seems to be that the objection of a former suit pending is removed by its dismissal or discontinuance, even after plea in abatement in the second suit. Warder v. Henry, 117 Mo., 530; Trawick v. Martin Brown & Co., 74 Tex., 522; Grider v. Apperson, 32 Ark., 332; Findlay v. Keim, 62 Pa. St., 112; Moorman v. Gibbs, 75 Iowa, 537; Nichols v. Bank, 45 Minn., 102, and numerous others.

We think this a more just and reasonable rule, and so hold to be the law, but we would not be understood as holding this to be inflexible and to be applied in all cases. The reason of the rule in the beginning that a plea of former action pending would abate the second action is just as good to-day as when the rule was adopted, i. e., that vexatious 'litigation would not be permitted, and if it appears that the second action was brought for the purposes of vexation, rather than to seek legal rights, the plea should be sustained. By permitting a reply to avoid the plea of a former action, the court ought to be able to ascertain the true reason of the second action, and if it appear vexatious, abate jt. In the case at bar it appears that appellant selected his forum to try his action, and that appellee, exercising his right, removed the case to the United States Circuit Court. Appellant then was given his election to' follow the case to the United' States Circuit Court or dismiss and again bring Ms action in the State court for less than $2,000. He chose the latter, but if he waited to dismiss before he brought his second action, it would be barred by limitation. So he chose to surrender $3,000 of his claim in order to try in the State court, and at the first time he could do so, he ■appeared in the United States Circuit Court and dismissed his action. It seems he was notified that appellee would ask the United States Court to require him to elect.

This election was had by a dismissal of the action where the larger sum in damages was claimed. It does not appear to have been vexatious.

For these reasons, we are of opinion that the demurrer to the reply to the plea of former action should have been overruled and the reply adjudged sufficient. Upon sustaining the demurrer to the reply, the court dismissed the action, which, following the former action, was error.

Wherefore, the judgment is reversed and cause remanded with directions to oven ule demurrer to the reply and for further proceedings, Judge DuRelle agreeing in reversal, but disagreeing on the reasoning.

JUDGE DcRELLE

delivered tiie following dissenting opinion:.

I concur with the opinion in this case in so far as it orders- a reversal upon the ground tnat on demurrer a replication -was good which set up the dismissal oif the suit in the Federal court subsequent to the plea in abatement; but I dissent from the opinion in so far as it holds that, in a suit in the State court, the pendency of a suit in the United 'States Circuit Court between the same parties, and concerning the same subject matter, pan be pleaded in abatement.

In my view, the courts of the State and of the United ■States, though sitting in the same district and having concurrent jurisdiction of the matter in controversy, are courts of foreign jurisdiction to each other in respect to pleading, in: one a Us pendens in the other. It has been held almost uniformly that the courts of one. of the States are, for this, purpose, foreign to those of another. As between the State and Federal courts, there has been more contrariety of opinion, but the uniform tendency of the later cases in the United States Circuit Court, circuit courts of appeal and the Supreme Court has been in support of views here expressed.

’Without going into a discussion of the cases which are cited in the opinion of the majority, it is sufficient to say here that the earlier Federal court cases, the argument and reasoning of which are much relied on in the opinion, are overruled by the recent cases, and are in direct conflict with, the comparatively recent cases of Gordon v. Gilfoil, 99 U. S., 169, and Sharon v. Hill, 22 Fed. Rep., 28. Nor was the decision of that question in Gordon v. Gilfoil mere obiter dictum. 'The question was before the court, was presented, and, while the court decided the case upon two! grounds, the decision of the one was no more obiter than was that of the other. It is urged that, as the first point decided was decisive of the case, the decision of the other being unnecessary was mere dictum.- Applying the same reasoning to the opinion in this case, the decision (in which the whole court concurs), that a replication is good which alleges the dismissal of the suit in the other jurisdiction, being unnecessary to the decision of the case, which is accomplished by the decision of the point now under consideration, is mere obiter, and not binding authority.

Nor does the reasoning given in support of the earlier decisions to the. contrary .seem to be sound. A distinction» is sought to be drawn in them between the courts of the United States and those of a “foreign State or country, whose laws and modes of proceeding are unknown and unfamiliar.” And it is further urged that the same statutory and common law is enforced by both the State and Federal tribunals in cases whereof they have concurrent jurisdiction. In response to this it may be said that the procedure of most of the States is far nearer alike than is the procedure in chancery in the Federal courts and that which obtains in a great majority of the States of the Union. And it may be further said that, while it is in a sense true that the “same •statutory and common law is enforced by both tribunals” (i. e., State and Federal), nevertheless the case at bar presents a state of fact as to which the decisions of the courts of this State are entirely different from those of the Federal Courts, which have concurrent jurisdiction when the amount in controversy is sufficient to give them jurisdiction.

The distinction seems to me to lie back of the argument urged. It is because the State and Federal tribunals are courts established by different sovereignties, and draw their pow’ers from a different source. And I think it unwise for the courts of this State to establish a different rule in this respect, applicable to cases in which the Federal jurisdiction has first attached, from that which has been established by the Federal courts (as appears from the authorities cited in the opinion), in cases where the priority in point of time is otherwise.  