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Sargent v. Sargent Granite Co.

31 Abb. N. Cas. 131 Court N. Y. Court of Common Pleas, General Term; English

Delivered by Pryor, J.

Contents

Majority

p. 131
SARGENT v. SARGENT GRANITE COMPANY.
N. Y. Court of Common Pleas, General Term;
December, 1893.

Headnote

1. Evidence; judicial writing.] When a superior court exercises statutory powers or jurisdiction according to the ordinary procedure, jurisdiction is supported by the usual presumptions; but if the procedure is special or summary, the record must show the jurisdictional facts.
2. Pleading ; jurisdiction.] In pleading a special or summary proceeding in a superior court of foreign jurisdiction,—e.g., an attachment,—and not the exercise of such court’s general statutory powers in accordance with the customary form of common law or chancery procedure, the statute by which the special proceeding is authorized must be pleaded, so that it may be seen that the right to institute the proceeding existed, and that the law has been strictly pursued.
3. The same; another action fending.] A plea of the pendency of another action for the same cause in a foreign jurisdiction in which property has been attached (if the pendency of such an action and attachment may be pleaded as a defense)[1] is insufficient if it fails to allege that the property was attached before the commencement of the action in which the plea is made, or that the attachment is still pending, or that the property attached is equivalent in value to plaintiffs’ demand.
4. Defenses.] Though garnishment or a foreign attachment of a debt in a foreign jurisdiction may be pleadable in abatement of a suit by the creditor, the attachment of property in an action for the same cause pending in another jurisdiction cannot be so pleaded.
Distinguishing Embree v. Hanna, 5 Johns. 101 .
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Appeals by plaintiffs respectively, in two actions, heard together, from so much of the orders and judgments of the Special Term of the N..Y. Court of Common Pleas as-overruled their demurrers to a certain defense set up in the answers.
Both actions were on contract; one was brought by Winthrop Otis Sargent against the Sargent Granite Company, and the other by Francis T. Sargent against the same defendant. The Sargent Granite Co. was a New York corporation.
The answers in each action among other things set up-the -following defense: “For a further and separate
defense it alleges upon information and belief that prior-to the beginning of this action, plaintiff began an action against defendant in the Supreme Court of the State of Maine for the same cause of action set up herein, and in said action plaintiff has attached the property of defendant. The said action is now pending and undetermined.”'
Each plaintiff demurred to such defense upon the ground that it was insufficient in law, and did not state-facts sufficient to constitute a defense.
The Special Term overruled the demurrer, holding on the authority of Embree v. Hanna ( 5 Johns. 101 ), that a plea of an action pending in another State in which property had been attached, was a good defense to an action for the same cause in this State.
The further facts are fully stated in the opinion.
George Carlton Comstock, for appellants.
I. If an attachment in another State may be pleaded in abatement, the defense as pleaded was insufficient, in that it was not. alleged that the seizure under the attachment was made before the commencement of the present action, or that it was still in force, or that the property attached was sufficient to satisfy any judgment that might be obtained in Maine (Citing Hadden v. St. Louis Iron Mountain, etc., 57 How. Pr. 390 ; Marsh v. West Bradley and Cary M’f’g
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Co., 46 Super. Ct. 8; Douglass v. Phenix Nat. Bk., 63 Hun, 393 , 395; Embree v. Hanna, 5 Johns. 101 ; Wheeler v. Raymond, 8 Cow. 311 ).
II. The pendency of another action for the same cause •of action cannot be pleaded in abatement, or as a bar where such suit is in the court of another State or of the United States; and the mere fa.ct that an attachment has been made in such an action, so long as it is not a foreign attachment or garnishment, can make no difference (Citing Bowne v. Joy, 9 Johns. 221 ; Maul v. Murray, 7 Term R. 470; Walsh v. Durkin, 12 Johns. 100 ; Burrows v. Miller, 5 How. Pr. 51 ; Oneida County Bk. v. Bonney, 101 N. Y. 173 ; Embree v. Hanna, 5 Johns. 101 ).
James D. Fessenden (Harriman & Fessenden, attorneys), for respondent
I. Though the mere pendency in another •State of an action for the same cause between the same parties may not be a defense, yet when the pendency of such an action is pleaded with the additional fact of an •attachment by plaintiff of defendant’s, property, it is a good defense.

When a superior court exercises statutory powers in accordance with the customary form of common law or chancery procedure, the usual presumption as to its jurisdiction is entertained ; but when those powers are to be exercised in a special or summary manner, the record must show that the court had jurisdiction and proceeded in the way prescribed by the statute (12 Am. & Eng. Ency. of Law, 276; Ferguson v. Crawford, 70 N. Y. 253 , 259; Embury v. Connor, 3 Id. 511, 522; Galpin v. Page, 18 Wall, 350 ; Haywood v. Collins, 60 Ill. 328 ). The process ■of attachment is the creature of statute and subsists only in conformity with the statutory regulation (Drake on Attachment, § 83; Waples on Attachment, 24; Haywood v. Collins, supra). • Hence, a plea of a pending attachment in a foreign jurisdiction must allege the 'statute by author

p. 134
ity of which it issues and exhibit the proceedings at large, “ that it may be seen that the right to attach the debt existed and that the law has been strictly pursued ” (Crawford v. Clute, 41 Am. Dec. 92 , 93; Wheeler v. Raymond, 8 Cowen, 315, note; Holmes v. Broughton, 10 Wend. 77 ; Drake on Attachment, § 705). The strictness of the former practice in pleading a dilatory defense still prevails (White v. Miller, 7 Hun, 427 ; Wigand v. Sickel, 3 Keyes, 120).

Reciting nothing more than that in an action in the Supreme Court of Maine the plaintiff attached the defendant’s property, the.plea in controversy is obviously invalid. The allegation of the attachment is but the statement of a legal conclusion, and so is not admitted by the demurrer (Douglas v. Phenix Ins. Co., 63 Hun, 393 , 398; aff’d 138 N. Y. 209 ).

Again, it is not apparent that the attachment in Maine-issued before the commencement of this action ; nor that the attachment is now pending; nor that the property attached is equivalent in value to the plaintiff’s demand —all which allegations are essential to the sufficiency of the plea (Hadden v. St. Louis Iron Mountain, etc., 57 How. Pr. 390 ; Hecker v. Mitchell, 5 Abb. Pr. 453 ,454; Marsh v. West Bradley & Cary M’f’g Co., 46 Super. Ct. 8; Embree v. Hanna, 5 Johns. 101 ; Wheeler v. Raymond, 8 Cow. 311 ).

Since, in any event, the order overruling the demurrer must be reversed, it is not necessary to consider the defense which the plea essays to interpose; but as, doubtless, if not determined now, the question involved will be presented again by an amended answer, we may properly dispose of it on the present appeal.

The question is whether the pendency of an attachment in an action in another State is pleadable in abatement of a subsequent action in this State by the same plaintiff for the same cause against the same defendant.

That the mere pendency of an action in another juris

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diction will not abate an action here for the same cause between the same parties is settled beyond dispute (Douglas v. Phenix Ins. Co., 138 N. Y. 209 , 218). Why, then, should the added incident of an attachment work that result ?

“A plaintiff is entitled to all the remedies provided by law for the collection of his debt, and need not be satisfied until he has had .such a judgment as will bind the defendant individually ” (Oneida County Bank v. Bonney, 101 N. Y. 173 , 175). The suit in Maine, not being an action in personam, cannot issue in a judgment binding upon the defendant and available to the plaintiff beyond the appropriation of the property attached (Cooper v. Reynolds, 10 Wall, 368 ; Douglas v. Phenix Ins. Co., supra). Hence, the remedy by the suit in Maine is not commensurate with the remedy in the present action, and upon principle, therefore, the plaintiff should not be compelled to forego a complete for a partial redress.

Moreover, the rights secured by an attachment being provisional and contingent on a recovery by the plaintiff, it follows that a final judgment for the defendant ipso facto vacates the attachment, and restores the parties to their original condition before the service of the writ (Franklin Bank v. Bachelder, 39 Am. Dec. 601 , 609). And, pending the action, the inchoate lien of the attachment may be lost by a dissolution of the process for anyone of many causes (7 Lawson's Rights, etc., §§ 3580-3589). Plainly, so precarious and inadequate a remedy as an attachment affords should not deprive the creditor of the security of a judgment conclusive of his claim, operative in personam and available always and everywhere.

How stands the question upon authority?

Not a solitary decision, or dictum even, is cited to sustain the proposition that an attachment merely is a good plea in abatement. The adjudication below proceeds on the assumption of an analogy between garnishment and attachment; but the argument is fallacious.

p. 136
Garnishment of the debt by a third person is pleadable in abatement of a suit by the creditor, because otherwise the garnishee might be subjected to a double recovery (Embree v. Hanna, 5 Johns. 101 ). But the attachment before us “ is not analogous to the case of the pendency of a prior foreign attachment .by a third person, for here the defendant would not be obliged to pay the money twice, since payment at least, if not a recovery in one suit, might be pleaded puis darrein continuance to the other suit; and if the two suits should even proceed pari passzc to judgment and execution, a satisfaction of either judgment might be shown upon audita querela or otherwise in discharge of the other” (Bowne v. Joy, 9 Johns. 221 ; Trubee v. Alden, 6 Hun, 75 , 78).

Indeed, upon application by the defendant, trial of the second suit may be stayed until the determination of the first (Douglas v. Phenix Ins. Co., 138 N. Y. 218 ), and an attachment in the second may be denied because of an attachment in the first (Trubee v. Alden, 6 Hun, 75 ). It is, then, an illusory apprehension that, unless the plea in abatement be allowed, a defendant may be harassed by concurrent attachments in every State of the Union.

The defense interposed is insufficient in substance (Woodruff, J., in Hecker v. Mitchell, 5 Abb. Pr. 453 , 454), and the demurrer should have been sustained.

So much of the order and judgment as plaintiff appeals from reversed, and judgment ordered for plaintiff upon his demurrer, with costs in both actions.

Daly, C. J., and BlSCHOFF, J., concurred.

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