•
SHARON v. HILL. . 29
5. SaMm—Equ1·rr Rum 69-Ev1naucn—HsAanve on Pirnsnmes.
_ Where, after expiration of the time allowed by qgnity rule 69 f0r_ taking tes-
timony, a case is submitted on oill, plea to the juri iction, and replication, and
no evidence has been taken by defendant, on whom the burden of proof rests,
the plea will be overruled for want of evidence.
In Equity.
For facts of case see Sharon v. Hill, 20 Fan. Rn?. 1.
W. H. L.—Barnes, for complainant.
Tyler or Tyler, for defendant. _
Sswrnn, J., (orally.) There is but one thing to do in this case,
and that is to overrule the plea. There are, in fact, two pleas: one
is that another suit is pending in a state court for the same cause of
suit; the other is that the complainant, Sharon, is a citizen of the
state of California, of which state the defendant is also a citizen, and
therefore that this court has no jurisdiction in the case. If`the com-
plainant had objected to the plea on account of duplicity and multi-
fariousness, and set it down for argument instead of replying, the
court would have been obliged to overrule it on that ground. But one
plea can be set up in equity without express leave of the court. Story, 1
Eq. Pl. §§ 653, 654; 2 Daniell, Ch. Pr. 681, 682, (Perkins’ Ed.) The .
plea is bad on that ground. The plaintiffs counsel did not see fit to
set it down for argument on that ground, and the objection is perhaps
waived.
Admitting the facts as alleged in the plea, of another suit pending,
to be true, the plea must be held bad because the two causes of suit
are not identical. The suit in the state court is for a divorce and a
division of the community property. The suit in this court is for a
decree declaring the written instrument set out and claimed to be a
contract of marriage, made in pursuance of section 75 of the Civil
Code of California, to be fraudulent and void; for canceling it on that
ground; and for a perpetual injunction restraining defendant from
claiming any rights under it. It is true, the same principal issue will
arise in both cases, but the bills of complaint in the respective suits
call and pray for entirely different and inconsistent relief. They are,
therefore, not the same cause of suit; nor is the relief sought in the two
suits by the same party. The first plea is bad, in substance, on that
ground. 2 Daniell, Ch. Pr. 720, 721. The whole effect sought in the s
second suit could not be had in the nrst, nor by the same party. A
cross—bill, at least, would be necessary, which would, in effect", be an-
other suit. The suit in the state court for divorce and a division of the
community property rests, for cause of suit, upon an alleged valid
and subsisting contract. It can be maintained on no other theory.
The complainant seeks to enforce the contract up to the present mo-
· ment, by claiming a decree for her half of the common property un-
der it; and then to have the contract dissolved, as to the future, upon
matters arising subsequently to the making of the contract; while
the cause of suit in this court is a forgery in making, and fraud in