Wade v. Clower , 94 Fla. 817 ( 1927 )

Except as judgments of State courts are subject to review in proper cases by the Federal Supreme Court, or as to those actions originally brought in a State court which may lawfully be removed to a Federal court, the the Courts of the United States and the various States are independent of each other, and the pendency of a suit in one of such courts is not a bar to a suit in another such court involving the same controversy, although, as a matter of comity, one of such courts will not ordinarily determine a controversy of which another of such courts has previously obtained jurisdiction. 15 C. J. 1152.

Where a State and Federal court have concurrent jurisdiction over the same parties or privies and the same subject matter, the tribunal where jurisdiction first attaches retains it exclusively and will be left to determine the controversy and to fully perform and exhaust its jurisdiction and to decide every issue or question properly arising in the case. This jurisdiction continues until the judgment rendered in the first action is satisfied and extends to proceedings which are ancillary or incidental to the action first brought. Accordingly, where the jurisdiction of a State or a Federal court has once attached, it cannot be taken away or arrested by proceedings subsequently instituted in the other court; but the usual practice is for the court in which the second action is brought not to dismiss such action, but to suspend proceedings therein until the first action is tried and determined. 15 C. J. 1161-1163; Black on Judgement, sec. 939a; 7 R. C. L., 1067et seq.

In the case of Covell v. Heyman, 111 U.S. 176, 28 L.Ed. 390, it was said by the Supreme Court of the United States, "The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise toward each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and, therefore, of necessity. It leaves nothing to discretion or mere convenience."

Although, when this cause was attempted to be removed to the United States District Court for the Southern District of Florida, the distinguished judge of that Court remanded the cause to the State court, and subsequently declined to enjoin the proceedings in the State court, and remarked in his final decree, above quoted from, that he was "somewhat at a loss to know" why the partnership estate could not have been settled in the suit by the administrator of the deceased partner in the State court, yet, when the complainant in the State court suit moved the Federal court to stay its proceedings, setting up the pendency and priority of the suit in the State court involving the same parties and the same subject matter, the Federal court, in an order without opinion and for some reason not disclosed, overruled the motion.

The complainant's motion for a stay of proceeding in the Federal court having been overruled, and, the proceeding in the State court having been delayed by the dilatory tactics of counsel for defendants, the proceeding in the Federal court ripened into final decree before the termination of the suit in the State court.

This status of affairs brought into operation the following propositions, which are well stated in Secs. 791 and 939a of 2nd Ed. of Black of Judgments:

"The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an affective defense, without regard to the order or time in which the suits were commenced. Hence it even follows that a prior judgment upon the same cause of action sustains the plea of a former recovery although the judgment is in an action commenced subsequent to the one in which it is pleaded."

"And where suits upon the same cause of action are pending simultaneously in a State court and in a Federal court, a final judgment entered in either court will be binding and conclusive in the other, without any regard to the question which suit was first commenced."

See also 7 R. C. L., 1069-70; 15 R. C. L. 889-990.

This doctrine is particularly appropriate here, inasmuch as the complainant in the instant suit, after his motion to stay proceedings in the Federal court had been overruled, participated in the proceedings in that court and accepted there fruits of the final decree therein rendered, without appeal.

It will have been observed, however, that the attorneys' fees and court costs in the instant suit were not adjudicated in the suit in the Federal court. The decree in that court charged against the complainant certain fees incurred in three different cases between the parties which preceded the instant case, but had nothing to say whatever about the attorneys' fees and costs in this case, which was then pending and undisposed of in the State court. Whether in these circumstances a judgment in the Federal court, upon the principles of resjudicata, could operate as a bar to the recovery by the complainant of attorneys' fees, which were expressly prayed to be allowed in the bill filed by him in the State court, is a question upon which no decisions in point have been cited by either side, nor have we been able to find any.

The general rule as to the conclusiveness of a former judgment is thus stated in Black on Judgments, Sec. 731: "A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action." See also 15 R. C. L. 951, 962-4; Grey v. Grey, 91 Fla. 103,107 So. 261; Yulee v. Canova, 11 Fla. 2, 56; G. L. Miller Co. v. Carmichael-McCalley Co., 109 So. 198. But this matter of allowance of solicitors' fees and court costs was not a matter which was specifically litigated in the case in the Federal court or covered by its decree, nor was it a matter which "might with propriety have been litigated and determined in that action." As the case in the State court was still pending, and as the matter of solicitors' fees and court costs in such case was peculiarly one to be ascertained and determined by the State court, the Federal court very properly made no effort to adjudicate the same. This view is strengthened by the fact that the State court had priority of jurisdiction over both the subject matter and the parties.

We are not unmindful of the rule laid down in Gentry-Futch Company v. Gentry, 90 Fla. 595, 106 So. 473, but we are of the opinion that upon the facts of this case it does not fall within the operation of that rule. Nor does this case fall within the influence of the doctrine announced in Lewis v. Gallard, 70 Fla. 172, 69 So. 797, and the cases therein cited.

"As a rule the costs of a suit for a partnership accounting, including the fees of experts and of attorneys, are to be paid out of the partnership estate, or if this is insufficient they are to be borne by the partners in proportion to their respective partnership shares. But, as in other equity suits, the court may exercise discretion in the award of costs, and it not infrequently charges the entire costs to one or some of the partners, either as a sort of punishment for misconduct, or because he has needlessly forced or prolonged the litigation, or because for some other reason the court concludes that justice demands it." 30 Cyc. 749-750.

"A judgement in an action for partnership accounting and settlement is conclusive upon the parties thereto as to all issues properly brought before the court, until it has been legally set aside; but it does not conclude as to matters not before the court at the time of the settlement." 30 Cyc. 751.

We conclude, therefore, that where, as in this case, the defendants in a suit in equity in the State court for an accounting and settlement of a partnership, pending such suit, bring suit against the complainant in the Federal court upon the same cause of action and procure a decree therein which does not specifically adjudicate the matter of solicitors' fees and court costs in the suit pending in the State court, which latter court had priority of jurisdiction, the State court, the exercise of whose jurisdiction to finally determine the entire cause of action has been thus anticipated and interrupted, may go on to a complete adjudication of all matters within the scope of the issue of the cause pending therein or appropriately incidental thereto, that have not been settled and adjudicated in the decree already procured in the Federal court, and certainly so as to such matters as the allowance of solicitors' fees and court costs in that case which are peculiarly within the power of the State court to fix and determine.

Appellants' motion to strike from the transcript certain portions of the record will be denied. We are satisfied that while some of these papers might have been recited instead of copied in full, they were required by appellees to be placed therein in good faith and all but a negligible quantity of these documents tend to throw light on the question involved in this appeal.

There was ample evidence to sustain the chancellor in allowing solicitors' fees in the amount named in his decree, but aside from this the contention of appellants seems to have been, not that the amount was excessive, but that the court was precluded from acting by reason of the Federal court's decision.

We have considered all the contentions of counsel on both sides but we deem that the controlling questions in this case are governed by the principles above stated. The final decree appealed from will therefore be affirmed.

Affirmed.

ELLIS, C. J., AND STRUM, J., concur.

WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion.