" CL 1948, ยง 615.11 (Stat Ann ยง 27.836). The statute has been thus interpreted in Republic Automobile Ins. Co. v. Maedel, 253 Mich. 663. See, also, Seager v. Foster, 185 Iowa 32 ( 169 N.W. 681, 8 ALR 690).
Hempel v. Bay Circuit Judge (syllabus), 222 Mich. 553. See, also, to the same effect, National Coal Co. v. Cincinnati Gas Coke, Coal Mining Co., 168 Mich. 195; Fisher v. Fisher, 224 Mich. 147; Daines v. Tarabusi, 246 Mich. 419; Republic Automobile Insurance Co. v. Maedel, 253 Mich. 663; Ward v. Hunter Machinery Co., 263 Mich. 445; Fraser v. Collier Construction Co., 305 Mich. 1. The court also erred in dismissing the garnishment suit before the principal case came to final conclusion.
The circumstances under which this rule is applicable have often been clearly stated. Where the pendency of a suit in one court is relied on to defeat a second suit in another court of concurrent jurisdiction, the identity of the parties, of the case made, and of the relief sought should be such that if the first suit had been decided it could be pleaded in bar as a former adjudication. 14 Am. Jur. 439, par. 246; Pacific Live Stock Co. v. Lewis, 241 U.S. 440, 60 L. ed. 1084, 36 Sup. Ct. 637; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257; Republic Auto Ins. Co. v. Maedel, 253 Mich. 663, 665, 235 N.W. 819. This court said in Gilley v. Jarvis, 94 Vt. 135, 137, 109 A. 41, 42: "The rule that where two courts have concurrent jurisdiction of the parties and of the subject-matter the court first acquiring jurisdiction has the right to proceed to its final determination without interference from the other, applies only where both suits are substantially the same, based on the same subject-matter, and seeking the same relief, so that judgment in the first suit, when thus ended, could be pleaded in bar as a former adjudication." In the Gilley case the defendant had previously obtained a judgment in municipal court against the plaintiff in an action for negligence in the same automobile accident upon which the pending cross suit was based. It was held that the prior judgment was not pleadable in bar in the pending suit, because not for the same cause of action.
This case is fairly typical of the standard practice in these matters, that is, the insurance companies have proceeded to a conclusion of the property damages by use of the simplified procedures of common pleas court while the personal injury claim awaited what is the relatively slow process of litigating a personal injury suit in circuit court. Michigan courts have long recognized that these modern insurance subrogation practices are often a more satisfactory method of adjudicating the legal questions raised by automobile accidents involving both property damage and personal injuries. See Republic Automobile Insurance Company v. Maedel (1931), 253 Mich. 663; National Liberty Insurance Company v. Foth (1931), 254 Mich. 152; Heck v. Henne (1927), 238 Mich. 198; also see 2 Callaghan's Michigan Civil Jurisprudence, Automobiles and Motor Vehicles, ยง 213 at p 268. More recently, this problem has been handled in Michigan by court rules, GCR 1963, 201.2 and 205.
"The general rule is that a defendant, having a claim available by way of setoff, counterclaim, or cross-petition, has an election so to plead it, or to reserve it for a future independent action, and a prior action in which a claim might have been asserted as a setoff, counterclaim, or cross-petition is no bar to a subsequent independent action thereon." The foregoing statement of the rule is supported by cases from thirty-three states, including Ohio, and cases from the federal courts, Canada and England. As bearing directly upon counterclaims arising out of automobile collisions, see Seager v. Foster, 185 Iowa 32, 169 N.W. 681, 8 A. L. R., 690; Republic Auto Ins. Co. v. Madel, 253 Mich. 663, 235 N.W. 819. A writ of prohibition should never issue unless it clearly appears that the inferior court is about to exceed its jurisdiction.