Ex parte Street , 106 Ala. 102 ( 1894 )

HABALSON, J.

— The bill, out of the filing of which, the question raised in this case arises, was filed by Henry G. Jacobs, as administrator, with the will annexed, of the estate of Simon Jacobs. It is against Andrew J. McDonald, as administrator of James H. Moore, the administrator in chief of the estate of said Simon Jacobs, and against Albert G. Henry, one of the sureties of said Moore, on his administration bond on said estate, for a final settlement and distribution of the estate of said Simon Jacobs. The names of all the next of kin and legatees of said Simon, including the name of said Henry G. Jacobs, who was one of his sons, with their ages and residences, are fully given. They are all proper, if not necessary parties to the bill, either as complainants or defendants. Whatever is received on said settlement, will go to these children and grandchildren, under and according to the will of said Simon Jacobs, and the suit is essentially in their interest. It was alleged by the complainants in the first bill filed, who were these very children and grandchildren, that there were no debts owing by the estate of said Simon; and the only possible object of the last bill, if that be true, and there is no reason to question it, is to compel a settlement of said Moore’s administration on said Simon Jacobs’ estate; to enforce the decree that may be rendered against the surety on the bond of said Moore, and for a distribution of the recovery amongst those entitled under the will. The complainant is suing as administrator with the will annexed. If there was any other object than this in the first bill filed, it is not shown; but on the contrary it is made manifest, that there could have been no other purpose in its filing. If that suit had been successfully prosecuted to the end, it must have been done with the same results as will be accomplished by the latter suit, if successfully prosecuted, — the cause of action in the two suits, the evidence necessary for success in each, and the parties in interest in each being the same. Nothing is proposed in.'the last suit, which was not proposed, and which might not have been accomplished by a successful prosecution of the first. If a recovery had been had in the first, it would have been a bar to the prosecution of the second. — Black on Judgments, § 725.

It is attempted to be argued, that the first suit was for the enforcement of certain legacies, and the last was not for that purpose. But that distinction does not exist in fact between the two cases. The prayer of both bills was for a settlement of the estate of said Simon Jacobs, which settlement must necessarily be under the will of said Simon. Besides, the legacy matter which is attempted to be set up, on which to base distinction between the suits, has reference only to three negroes and two horses, that the testator ordered to be sold and the proceeds divided equally between his children and grandchildren, the grandchildren taking their parents’ interest. This property, the administrator Moore sold, and converted the proceeds, for which, together with the other assets he wasted, the surety on his administration bond in this bill is sought to be made liable, as he was in the other. It baffles ingenuity, having reference to the cause of action, the parties and the results proposed to be accomplished in each suit, to draw any difference, in substance and effect between them. The chancellor was not in error in ordering the costs of the former suit to be paid, before the latter should be further prosecuted. It is well settled, that when the complainant, as here, has failed in one suit, and brings another against the same parties, or those in privity with them, for the' same, or what is substantially the same cause of action, the court will stay proceedings in the second until the costs in the former suit are paid. We confine this statement to causes in equity, since what the rule, in this State is in common law cases, if different from this, is not before us. For a collation of the authorities see 23 A. &E. Ency. of Law, 527.

The petition for mandamus is denied.

Brickell, O.J., not sitting.