Opinion
03-02-1886
VAIL and others, Ex'rs, v. CENTRAL R. CO. OF N. J. and others.
F. B. Gowen, for petitioner. H. C. Pitney and B. Gummere, for complainants, contra.
This was an application by the Philadelphia & Reading Railroad Company, one of the defendants, for an order permitting it to amend the answer, by setting up the suit in equity brought on the twenty-ninth June, 1883, in the circuit court of the United States for the district of New Jersey, by William B. Dinsmore against the defendants in this cause, and the decree made therein. Application refused. The facts are stated in the opinion of the court.
F. B. Gowen, for petitioner.
H. C. Pitney and B. Gummere, for complainants, contra.
RUNYON, Ch. The Philadelphia & Reading Railroad Company, one of the defendants, applies for an order permitting it to amend the answer by setting up the suit in equity brought on the twenty-ninth of June, 1883, in the circuit court of the United States for the district of New Jersey, by William B. Dinsmore against the defendants in this cause, and the decree made therein. The petition alleges that that suit was brought, not for Dinsmore alone, but also for any stockholder of the Central who might thereafter choose to come in; that the bill prayed the same relief as is prayed in this suit; and that that suit was brought for substantially the same causes as this. It also states that issue was joined therein, and, after testimony and a full hearing, a final decree was made December 2, 1884, dismissing the bill. The petitioners claimthat, in view of that suit and decree, this suit should be stayed, and that no decree should be made therein.
The power of permitting amendments, even so late as the final hearing, is frequently exercised by courts of equity. This is an application to amend the answer after the cause has been heard and decided. The proposed amendment is the pleading of a matter which, so far as the pendency of the Dinsmore suit is concerned, not only is not new, but was fully known to the defendants when they filed the answer; and the answer was filed about two years before the hearing. The sole object in pleading the matter now is to induce this court to proceed no further in this suit although it has pronounced its decision therein.
If the pendency of the Dinsmore suit had been set up in the answer, it would have constituted no defense. It would have been, at most, a mere plea of the pendency of a suit in a concurrent foreign jurisdiction for the same cause, but not between the same parties. Had the parties been the same, the result would not have been different. The mere pendency of a suit in a federal court, or in a court of another state, or in any other foreign jurisdiction, between the same parties, for the same cause, and for the same relief, cannot be pleaded in abatement nor in bar to a subsequent suit here. Fulton v. Golden, 25 N. J. Eq. 353; Kerr v. Willetts, 2 Atl. Rep. 782, (Sup. Ct. N. J. February term, 1886;) Mitchell v. Bunch, 2 Paige, 606; Loring v. Marsh, 2 Cliff. 311; Stanton v. Embrey, 93 U. S. 548, and cases there cited; Story, Eq. Pl. (9th Ed.) § 741, and note, and cases cited.
The remedy of the defendants is to apply to the court here to stay the subsequent suit, or refuse to enter final judgment until the former suit shall have been discontinued. The Dinsmore suit was neither actually nor substantially between the same parties as this suit. It is urged that both suits, though brought by different persons, are against the same defendants, and for the same cause, and for the same relief, and are in fact for the benefit of the Central Railroad Company, and therefore should, for the purpose of this application, be held to be between the same parties; but they are not for the benefit of the corporation in any sense which would make them identical. In each the complaining party sues the company itself, and seeks to set aside the lease as having been made in violation of his or their rights. The suit, therefore, is not for, but against, the company, to establish those rights as against its action, and to undo that action. It is not every stockholder who is entitled to maintain such a suit. Some have expressly consented to the lease. They could not maintain it. Others who have not expressly consented to the lease may, by laches or acquiescence, be disentitled to relief. Each of these suits has the characteristics of a merely individual claim. If two cestuis que trust, having separate interests in trust property, not corporate, should bring separate suits, one in a state jurisdiction and the other in a federal court, against the trustee, a natural person, and his transferee, to set aside a fraudulent transfer of the property, would comity or consideration for the trustee and his transferee induce either court to stay one of the suits because of the existence of the other? Both would be againstthe trustee and his transferee, and the object of the suits would be the same; but each complainant would be seeking relief for himself, and both would be permitted to pursue their remedies in their chosen jurisdictions. This suit and the Dinsmore suit in nowise differ from the case suggested, except that here the trustee is a corporation and the property is corporate property.
For the same reasons above given, the decree in the Dinsmore suit cannot be pleaded in this. It may be added that it is impossible to determine from that decree on what grounds the adjudication was based. It does not adjudge that the lease is valid as against all of the dissenting minority of stockholders of the Central, nor that it is valid at all. Nor is such adjudication to be implied therefrom. It merely dismisses the bill, and so adjudges that Dinsmore is not entitled to the relief which be has sought. The court filed no opinion. Moreover, it is admitted that an appeal from the decree is pending. There is not only no conflict between the decree which this court will make and that of the fedderal court, but there is not even any contrariety.
Again, the petitioners invoke the rule that where suit is brought for the same cause, and for the same relief, by and against the same parties, in different but concurrent jurisdictions, the court which first obtains jurisdiction will be permitted to retain it. That rule is based merely upon comity, to avoid conflict of jurisdictions, and out of consideration for the interest of defendants, to protect them against the expense, trouble, and vexation of unnecessary litigation. This case is, for the reasons before stated, not within the rule; and, if it were, it is obvious that, where a defendant does not see fit to bring to the judicial notice the fact of the existence of such other litigation, he has no ground of complaint; and it is equally clear that no considerations of mere comity require the court to refrain from making its decree when such notice has been withheld until after it has decided the cause. A defendant, under such circumstances, must be regarded as having waited until he could ascertain what the decisions here would be, before introducing the facts upon which he asks the court to stay its proceedings out of deference to another tribunal. Such experiments are, to say the least of it, not to be favored.
The motion will be denied, with costs.