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Jurisdictional Considerations for In Rem, Quasi In Rem or Mixed Actions

An action is a judicial proceeding brought by one party against another seeking redress of a wrong or for protection of a right or for prevention of a wrong.  An action in rem is an action to determine title to property and the rights of the parties.  It determines rights in property that are conclusive against the whole world.  Quasi in rem refers to a legal action which mainly involves property rights, but partly involves personal rights as well. A quasi in rem action determines the rights of a person in a thing.

If jurisdiction of a prior court is attached to a proceeding of in rem or quasi in rem, the second court applies the principle of priority and does not exercise jurisdiction over the res.  The principle of priority is applicable when there is conflict of jurisdiction and court actions are in rem or quasi in rem.  The possession of the res in case of conflict of jurisdiction is vested upon, the court which first acquired jurisdiction.[i] The first court’s control over the res is not disturbed by the second court.[ii] In a proceeding of action in rem or quasi in rem, the first court to acquire jurisdiction over the property has jurisdiction to the exclusion of the other.  The basis for exclusive jurisdiction is that there is only one res and the first court to assume jurisdiction over the res withdraws it from the judicial power of other court.  This contrasts with an action in personam which seeks a personal judgment and not control over a res.[iii]

To apply the principle of priority, the parties need not be the same but substantial identity of parties is necessary.[iv] The principle of priority is applied in rem actions;

  • when property is seized under judicial process
  • to enforce leins against specific property
  • to marshal assets
  • to administer trusts
  • to liquidate insolvent estates

If the remedy needed in the second action is consistent with the first action and the same res is involved, the second action is not abated.  However if the action of the second court interferes with the control of res by the first court, the second action is abated.  When there is no jurisdiction of the res with the first court, the pendency of a prior suit in rem in one state cannot be pleaded in abatement in another state even if both suits are between the same parties and on the same cause of action.[v]

[i] Inter-Southern Life Ins. Co. v. McQuarie, 148 Ga. 233 (Ga. 1918)

[ii] Gregg v. Superior Court, 194 Cal. App. 3d 134 (Cal. App. 1st Dist. 1987)

[iii] Tonnemacher v. Touche Ross & Co., 186 Ariz. 125 (Ariz. Ct. App. 1996)

[iv] Baker v. Salomon, 31 Ill. App. 3d 278 (Ill. App. Ct. 1st Dist. 1975)

[v] Lyerla v. Lyerla, 195 Kan. 259 (Kan. 1965)

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