Cole ex rel. Fie v. William H. Flitcraft & Co.

Bowie, J., delivered the opinion of the Court. The material point presented hy the record in this case is, whether the pendency of a prior attachment in this State is a good replication to a plea of judgment of condemnation, recovered (in a Court of competent jurisdiction in another State) against the defendants, as garnishees of the plaintiff, and execution thereof made and satisfied. ' ■ The appellant (plaintiff below) sued the appellees', by attachment on warrant, issued out of the Circuit Court for Cecil County, on the 27th of October, 1873. The cause was continued by various pleadings, until the 12th of December, 1876, when an amended narr. was filed, containing ' the common counts, to which, among others, the defendants filed a- special plea to the following effect, that the appellant Cole, being a non-resident of Pennsylvania, ³¹⁵ an attachment was sued out of the District Court of the County and City of Philadelphia, by one McCullough, against the property of the appellant on 11th December, lSlB, on which process the same debt now sued for by Cole, was attached and condemned in the hands of the defendants, and said judgment of condemnation was by execution thereon made and satisfied, as appeared by record. Eight replications were filed to this plea, the first mil tiel record ; the second and third impeaching the judgment and execution and satisfaction as collusive and fraudulent.

The rest pleading matters in avoidance, e. g., want of notice of the attachment, irregularity and illegality in non-observance of the statutes of Pennsylvania. The seventh alleged, that a prior attachment was issued by the appellant against the defendants in Maryland, which was laid and served, and to which they appeared, and the same was pending when the judgment of condemnation was rendered. Issues were joined on the first three replications, and demurrers entered-by defendants to the residue, including the seventh. It is not necessary to consider separately the demurrers to the several replications.

They all involve by relation the sufficiency of the plea of judgment recovered in a Court of competent jurisdiction in a foreign State, and satisfaction thereof, as a bar to the action. If the plea is sufficient, the demurrers were properly sustained; if the plea was defective, “ vice versa,” the demurrers should have been overruled. The appellant’s counsel confidently relies upon the decision of the Supreme Court of the United States, in the case of Wallace vs. McConnell, as sustaining the doctrine as between Courts of the several States, that the first attachment gives prior jurisdiction to the Court of the State from which it issued, and arrests proceedings on subsequent attachments in all other States, — thus supporting his seventh replication to the plea. It must be con ³¹⁶ ceded, that the language of the Court in that case is very broad, and hardly consistent with any other construction at first sight.

But that was a case in which the question arose between Courts having concurrent jurisdiction over the same causes of action in the same territory. The District Court of Alabama, exercising the powers of a Circuit Court of the United States on the one hand, and the County Court of Mobile on the other. Suit was instituted in the former by capias on a promissory note, by the plaintiffs against the defendant, on the 10th of May, 1832. On the 8th of June, 1836, an attachment on warrant was issued at the instance of certain creditors of the plaintiff against him, and laid in the hands of the defendant, as garnishee, and returned to the County Court, where it was pending at the time of the plea.

Commenting upon the plea of attachment in the County Court and its effect, as a defence to the action, the Supreme Court declares that the jurisdiction of the District Court of the'United States and the right of the plaintiff to prosecute his suit in that Court, having attached, that right could not be arrested or taken away by any proceedings in another Court. “This would produce a collision in the jurisdiction of Courts that would extremely embarrass the administration of justice. If the attachment had been conducted to a conclusion, and the money recovered of the defendant before the commencement of the present suit, there can be no doubt that it might have been set up as.a payment upon the note in question.” * * * “The attaching creditor would in such case acquire a lien upon the debt, binding upon the defendant, and which the Courts of all other governments, if they recognize such proceedings at all, could not fail to regard. If this doctrine be correct, the priority of the suit will determine the right.” ‘ ‘ The rule must be reciprocal; and where the suit in one Court is commenced prior to the institution of proceedings ³¹⁷ in attachment in another Court, such proceedings cannot arrest the suit, and the maxim ‘ qui prior est tempore, potior est jure,’’ must govern the case.” These remarks were doubtless correct as far as applied to the facts then before the Court; and to the Courts in which the conflict of jurisdiction then occurred, as between Federal and State Courts in the same State, but it is very doubtful whether they are applicable to Courts of entirely distinct governments. It depends entirely upon the comity of the Courts of the several States, what effect may be given to the pending process of the Court of one State in another.

There is not, as far as we are advised, any legal obligation on a State Court to suspend its action in a case between its suitors, because a suit is pending in another State for the same property between other parties. “ Vigilantibus non dormientibns subveniunt leges.” In the case of Brown vs. Somerville, 8 Md., 455 , it was held, that the mere pendency of an attachment against the defendant is no defence to the action broirght by his creditor for the same debt; it must be shown, to make the plea of attachment a bar, that there was a judgment of condemnation thereon and execution made. This decision is based on the language of the 7th section of the Act of 1715, ch. 40, relating to attachments, and it was held that the same principles apply to cases of attachments on judgments as to foreign attachments. The same law (it is said in that case,) prevails in England, New York and Pennsylvania, and the case just quoted, Wallace vs. McConnell, 13 Peters, 136 , is referred to as sanctioning the same doctrine. If the pendency of an attachment is not a defence, it seems a necessary conclusion that its priority would be immaterial in a question