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Priority of Pending Action

The pendency of another action growing out of the same transaction is a ground for abatement of the second action but never for abatement of the first.[i] Courts generally consider the second action on the same cause of action as repetitive and vexatious, thus robbing the precious time of the courts since the first action provides ample remedy to the moving party’s grievances.  For instance, in Johnson v. Brown Service Ins. Co., 293 Ala. 549 (Ala. 1974), the court held that person cannot prosecute two suits at the same time, for the same cause against the same party.

This is in tune with the rule of exclusive concurrent jurisdiction.  According to the rule, when two superior courts have concurrent jurisdiction over the subject matter and all parties, the first court to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.[ii] For instance, in State ex rel. Palmer v. Goeke, 8 S.W.3d 193, 195 (Mo. Ct. App. 1999), When two suits relating to a dispute involving the same subject matter between the same parties were filed in two Missouri circuit courts of proper venue and concurrent jurisdiction, the court in which the first petition was filed was vested with exclusive jurisdiction over the matter to the exclusion of all other courts.

The tribunal where process is first served retains the priority of jurisdiction.[iii] However, “court will not abate the subsequent suit if the relief sought in the second action is different from that in the first suit and the first action cannot provide such relief sought in the second.”[iv]

Courts apply the exclusivity rule where one suit is filed in federal court and another is filed in state court, and has held that a state court action can be abated if a federal court action involving the same cause against the same party is pending.[v] Further, a state court cannot enjoin a party from relitigating a question in a federal court after the party has lost the case in a state court.  Federal court is the proper authority to determine whether such an action amounts to res judicata.[vi]

[i] California Union Ins. Co. v. Trinity River Land Co., 105 Cal. App. 3d 104, 108-109 (Cal. App. 3d Dist. 1980)

[ii] Halpin v. Superior Court, 14 Cal. App. 3d 530 (Cal. App. 3d Dist. 1971).

[iii] Mungia v. Superior Court of Los Angeles County, 225 Cal. App. 2d 280 (Cal. App. 2d Dist. 1964), California Union Ins. Co. v. Trinity River Land Co., 105 Cal. App. 3d 104, 109 (Cal. App. 3d Dist. 1980).

[iv] Lawyers Title Ins. Corp. v. Superior Court, 151 Cal. App. 3d 455, 459 (Cal. App. 1st Dist. 1984)

[v] Fegaro v. South Central Bell, 287 Ala. 407 (Ala. 1971)

[vi] Johnson v. Brown–Service Ins. Co., 293 Ala. 549, 552 (Ala. 1974)

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