Akerly v. Vilas , 15 Wis. 401 ( 1862 )

By the Court,

DixoíT, 0. J.

The plaintiff was properly restrained from prosecuting his action at law on the bonds. The refusal to convey the lands in Green and Grant counties, the nbn-delivery of the certificates of stock, and the failure of title to a portion of the lots in Prairie du Ohien, as set forth in the first and second defenses of the answer, constitute, if not complete, at least partial defenses or counter-claims to the cause of action stated in the complaint. They arise out of the same transaction, and are properly pleaded in this action. E. S., chap. 125, secs. 10, 11; Walker v. Wilson, 18 Wis., 522; Hall v. Gale, 14 id., 54.

To say nothing therefore of the other matters contained in those defenses, and of the third and fourth, to which the plaintiff’s counsel so seriously object, and which they insist constitute no defense to the claim of the plaintiff, these must, for the purposes of this application, be deemed sufficient. For we are not judging the answer as upon demurrer or upon motion to strike out parts of it, or to make it more definite and certain. We look to see if, in any part, it contains a substantial defense to the whole or any part of the cause of action stated by the plaintiff. If it does, and the defense is of a nature to be unavailable to the defendant in the action at law upon the bonds, his right to the injunction is established, unless there be some reason peculiar to this case, which takes it out of the ordinary rules of courts of equity upon this subject. The presence of immaterial averments or irregularities in form, does not affect the question. Hence we do not inquire into them.

The district court of the United States proceeds according course °I the common law. However it might have been bad the action upon tbe bonds been commenced in one 0f tHe courts of this state, which are governed bj the Code (R. S., chap. 125, sec. 12), it is very clear that in the district court the partial or total failure of consideration constitutes no defense to the action at law. The authorities cited by the plaintiff’s .counsel are conclusive upon that question. The seal imports a consideration, which cannot be impeached except for illegality. Therefore the matters of defense contained in the answer, which are good in equity where no such technical barriers stand in the way of complete justice, would avail nothing in that suit. Here we have a solid foundation in equity for the order made by the circuit judge, and a very probable explanation of the plaintiff’s motive in seeking to withdraw the litigation from the circuit and transfer it to the district court.

The general power of courts of equity whose jurisdiction has once attached, to restrain parties from commencing and prosecuting subsequent actions in other courts for the same object, is unquestioned. If any doubt should exist, it will be effectually dispelled by an examination of the cases cited by the counsel for the defendant. The defendant will be restrained at the instance of the plaintiff, and vice versa. The forum or jurisdiction in which the subsequent proceedings are taken, whether domestic or foreign, is immaterial. The injunction goes against the party and not the court or officer. The doctrine of the English courts is well settled, and we are unable to find any American decision to the contrary. The sole inquiry is, whether the ends of justice demand that the power should be exercised. If they do, the court first acquiring jurisdiction will retain the suit for a final determination of the rights of the parties, and restrain them from suing or proceeding elsewhere.

The only question here is, whether there is anything in the relations of the state and federal courts which should prevent the application of this general doctrine to a case like the present. Counsel for plaintiff insist that there is — that it will lead to troublesome and unnecessary conflicts, promote litigation, and violate the rules of comity and forbear-anee wbicb should be maintained between the two jurisdictions. We think differently. It seems to us that no tion of conflict of jurisdiction is involved. This is implied from the nature of the power exercised. No attempt to control or regulate the action of the federal court or its officers is made. The process is directed to the parties litigating before the court from which it issues, and it becomes a mere question of the power of that court to regulate and control their conduct in regard to the subject of such litigation. This power has never been denied. Instances of its exercise by the federal courts in restraint of parties seeking to litigate in the tribunals of the states, are frequent. No reason is perceived why it should not be reciprocal.

The argument drawn from the rules of comity would seem to be more appropriately urged in the district court than here. It is the established, and, we think, correct doctrine of the federal courts, as to all cases where the jurisdiction of the two judicial systems is concurrent and no appeal is given, that priority of suit determines the right. Proceedings in the action first commenced cannot be arrested or affected by those subsequently taken in another court. Wallace v. McConnell, 13 Peters, 136. The plaintiff having voluntarily submitted the whole controversy to the courts of the state, cannot complain of the rules of law by which their action is governed, or that he is held to abide their determination; and the rules of comity, if they can be said to have any application, would seem to require that the junior action should be dismissed from the district court.

It will be readily perceived that this is npt a case where the plaintiff will be ordered to elect between his action at law and remedy in equity. Such election is never permitted when it will lead to hardship or injustice. If the answer show merits, and the defense be such as cannot be made at law, the suit will be retained, and the plaintiff enjoined from proceeding elsewhere.

Neither is the doctrine of equity as to executory agreements for the sale of lands, at all applicable. Upon a bill to rescind such agreement, on the ground that the vendor is unable to give a good title, if it appear, at the time of decree, he is able to do so, the plaintiff will be compelled to accept. This is the case of a contract past and executed so far aá the defendant is concerned, and the only question is, whether he shall be allowed to show a partial or total failure of consideration. He was entitled to a conveyance of the land and a transfer of the certificates at the time fixed by the agreement. If the plaintiff neglected or refused to mate them, we can see no'more reason why the defendant should now be compelled to accept them, than if the consideration had been the transfer of personal property, or the performance of any other act which the plaintiff afterwards wrongfully refused. If he fails to enforce the bonds and mortgage, it will be in consequence of his own wrong in refusing to keep his agreement with the defendant.

In regard to the provisions of the statute regulating in-junctional orders where they form a part of the relief demanded by the plaintiff, we do not think they should be held to abrogate the ancient and well established power of equity, to restrain and control him when his conduct is vexatious and unjust towards the defendant. It is one of the inherent and indispensable powers of the court, which ought not to be taken away except by express words. Much less should it be repealed by implication which at best is very doubtful and unsatisfactory. In regulating the injunction in those frequent cases where it is sought as part of the affirmative relief in an action, the legislature cannot be supposed to have had in mind those occasional instances where it issued in behalf of a defendant. To require the defendant to commence a new suit in ajd of one already pending in the same court, would be a most idle and needless waste of time and money ; and it is far more reasonable to suppose that the legislature intended that the former practice should remain as it was, than that this should be the result. We are of opinion, therefore, upon the whole record, that the order of the court below was correct, and that it must be affirmed.

Ordered accordingly.