Rowley v. Williams

By the Court, Smith, J. Another suit depending in tbe same court, for tbe same matter, is a good plea if it contain tbe proper and necessary averments, and is in tbe proper form. It appears tliat tbe plea in this case was set down for bearing, and tbe matters therein alleged thereby admitted to be true. Though tbe usual practice is, especially when the other suit is pending in another court, to obtain an order of reference to a master to examine and report whether or not tbe plea be true; yet it seems, if tbe plea be set down for bearing, it must be allowed, unless it be defective in form. The setting this plea down for bearing admits that a former suit for tbe same matter is depending, and such an order under our practice, would not probably be requisite. Mitf. Eg. PI. 247, 248. As we have no masters in chancery in this state, nor any corresponding officer, with correlative powers and duties, many of tbe functions of that officer devolve upon tbe court, and we see no reason why a plea of this kind may not be disposed of by tbe court, as tbe like duties are performed in respect of other pleas, in like manner as tbe court would dispose of it upon bearing, after the report of tbe master. Such must necessarily be tbe practice. We have now no master to whom to refer tbe cause to ascertain whether tbe plea be true, and that duty, if necessary to be performed, is devolved upon tbe court. It was adopted in this case without objection, and we have no doubt it is correct. This case, however, differs from those in which a plea of this kind is usually interposed. Ordinarily it is sought to be made available by tbe same defendant in both suits, either where tbe same plaintiff has brought two suits for tbe same matter against him, or where another party may have become interested in tbe subject matter, and files a bill on bis own account. Story's Eg. PI. § 738. Here tbe parties are reversed. Tbe present defendant filed bis bill of foreclosure, making tbe present complainant a party, who came in and answered, setting up bis interest as a [154] prior mortgagee; and the question is, haying been made a party to the first suit, and appeared and set up his interest in’the subject matter, thus bringing all the parties interested in the objects of the suit before the court, can he be permitted to litigate his interest in a new and separate suit, commenced by him while the former is pending, and in which he has submitted his interests ? We have not been referred to any case precisely in point, but the principle applicable to cases of this kind is pretty well settled by the authorities. It is a rule in equity pleading that all persons interested in the subject matter of the suit, must be made parties, so as to enable the court to do complete justice to all, and to make a just and final disposition of the whole matter. 2 Wis. Rep. 306. It is sufficient that all the parties interested in the object of the suit, should be before the court, either as complainants or defendants; and when so before the court all may be adequately protected in their just rights. Wilkins vs. Fry, 1 Mitf. 262; Story’s Eq. Pl. 74 a. The complainant haying .appeared in the first suit, put in his answer, and submitted his person and his interests to the jurisdiction of the court, was abundantly protected. No occasion appears for the second suit, and we .are unable to perceive how he could derive any beneficial results therefrom, except in the increase of costs, and such ought not to be allowed. In such a case even the owner of the equity of redemption could be charged with only one bill of costs. 3 Paige, 509. This case is somewhat similar to that of a creditor who files a bill on behalf of himself and other creditors, and another creditor comes in and makes himself a party to the suit, or decree, if there be one, and then files a bill on behalf of himself and other creditors. In such case the defendants may plead the pre-cedency of the former suit. 3 Atk, 597; Story’s Eq. Pl. § 740. In both cases a common fund or estate is sought to be subjected to the equitable jurisdiction and disposition of the court. If, however, the plaintiff in the first suit is dilatory, or refuses to proceed, the other creditors may apply for and obtain leave to conduct the suit. So there can be no real difficulty, and cer [155] tainly no injustice in applying the rule to separate mortgagees of the same property. Submitting to the jurisdiction by his appearance and answer in the first suit, his rights and interests 'are fully protected, as the mortgage estate is the common object of both suits. Upon principle, therefore, as well as authority, this plea ought to have been held good. It is not denied that the former suit is for the same subject matter-as the latter; that the complainant appeared and answered, setting up his title and interest, and that the former suit is still pending, upon the determination of which he would be entitled to, and would obtain the same relief therein, as he claims, or would be entitled to by his own bill in the latter. The order of the Circuit Court is reversed, and the cause remanded for further proceedings according to law.