HURD fl. HOILES.
November 9, 1886.)
HURD and others v.
w: D. Michigan, N. D.
CoURTS-UNITED STATES CIRCUIT COURT-SUIT TO FORECLOSE MORTGAGE PENDING FORMER SUIT FOR ACCOUNTING IN ANOTHER DISTRICT.
Complainant, being a non-resident of the state, files a bill for the foreclosure of a mortgage in the United States circuit court of the Western district of Michigan; defendant, being a resident of the Eastern division, had prior thereto filed his bill against present complainants for an accounting of the amount due on the mortgage, claiminll: that certain credits with complainants were applicable to the payment of the mortgage, and the same was thereby paid, and therefore the mortgage and notes should be decreed to be canceled. Personal service was had upon the defendants in that suit, and it was still pending. Held that, while the suit in the Eastern district was not strictly pleadable in abatement, the court should stay all further proceedings in the Western district until the determination of the suit in the Eastern district.
In Equity. Bill to foreclose mortgage. D. E. Corbitt, for complainants. Edgett ct Brooks, for defendants. SEVERENS, J. The bill in this cause was filed in April last for the purpose of foreclosing a mortgage upon certain lands in the coun ty of Chippewa, in this federal district, for the sum of $60,000, and in· terest, executed by the defendants other than Henry Moiles, September 18, 1884. This mortgage was given to secure six notes, of $10,. 000 each, which represented certain advances made by the complainants, as owners of certain timber lands, to the defendants, who are mortgagors, to enable them to erect a saw-mill, and the appropriate machinery and appurtenances, and for other expenses involved in the manufacture into lumber of the timber above mentioned. The manUfacturing was on joint account of the owners of the land and the manufacturers, upon a contract, the special terms of which are not now necessary to be considered. There was also, at the date of the mortgage, an open running account between those parties, growing out of the same business, and which continued after the date of the mortgage. Upon that account the last-mentioned defendants had become largely indebted to the complainants at the end of the year following the date of the mortgage, unless certain sums, which the defendants claimed as credits, were applied in liquidation of that ac. count, instead of being applied upon the mortgage; they insisting that the latter application should be made. These last-mentioned facts respecting the open acoount, and the application of credits, are, of course, no part of the complainants' case, but they are brought in by the plea of the defendant mort. gagors, (the other defendant, Henry Moiles, being a subsequent purchaser or incumbrancer,) which plea, after setting up the facts above mentioned, alleges that on the eighteenth September, 1885, those de· fendants, being residents of the Eastern district of Michigan, filed v.281<'.no.18-57
their bill in equity against the present complainants, who are nonresidents of the state, in the circuit court fOldhltt district, for the purpose of obtaining an accounting of the amount due on the mortgage; claiming that the aforesaid credits were properly applicable to the payment of the mortgage, that the same was thereby paid, and therefore that the mortgage and notes should be decreed to be canceled. Personal service was had upon defendants there, and the suit is still pending and undetermined there. Attention is not here given to the peculiar circumstances which attend these credits, and which are set forth in detail in the pleadings, because the equities of the parties are not now to be ascertained and determined. A motion is now made to dismiss the bill upon the assumption of the facts stated in the plea, which is treated by the parties as in the nature of abatement .because of the suit pending in the Eastern district. I shall therefore give no attention to any question of practice which counsel for the parties have not raised. The point for decision is whether the former suit, pending in the Eastern district, should abate the present; and, if not, what course should be taken in this suit while the other is pending. It is a wellsettled rule, prevailing as well in the state as in the federal tribunals, that when a court, having jurisdiction of the parties and subjectmatter, has obtained control ofthe matter in controversy, it is thereby withdrawn from the scope of other tribunals, and may not be the subject of litigation elsewhere. But there is some contrariety of view, leading to apparent, and perhaps actual, diversity of decision in respect to the meaning of the term "matter in controversy" in the definition of the rule. Counsel for complainants has argued here that, in order to exclude the jurisdiction of the court in which the second suit is brought, the object of the former suit must be the same as in the second, and the court in which it is pending must have authority to grant the relief sought and otherwise obtainable in the second suit; whereas, upon the pleadings and controversy in the Eastern district, all that court could do would be to dismiss the bill. In case his clients should succeed there, the mortgage would remain unforeclosed, and the parties would be left where they were when the suit began; and he claims, what is manifest enough, that the object of that suit is not the same as that in the present one. And there are authorities which seem to Rustain that contention. Among the cases cited by counsel are Granger v.Judge of Wayne 27 Mich. 406; Pullman v.Alley, 53 N. Y. 637; Evans v.Dingle, 55 Ill. 455; Kelse.yv. Ward, 16 Abb. Pro 98; Ostell V. Le Page, 21 Eng. Law & Eq. 640. But a somewhat carefnlstudy of the authorities generally, and especially those in the federal courts, and of the legall'easons on which the doctrine rests, leads me to the conclusion that this is too narrow a definition, and would not in all cases answer the requirements of the rule; but, on the contrary, would exclude a great many which are plainly wiihin its reasons and policy. ,