A. M. BROWN, Appellant, v. H. C. CAMPBELL et al., Appellants. JOHN G. PRIEST, Respondent, 110 Cal. 644

Harrison, J. The case of Priest v. Brown et al., in which Joseph Brown and A. M. Brown were two of the-defendants, was commenced in the superior court for the city and county of San Francisco, April 13, 1887,. and was tried in Department One of that court before the Hon. T. K. Wilson, and judgment was rendered by him in favor of the defendants, and was entered.November 24, 1888. The action was brought for the purpose of subjecting to sale, under the direction of the court, certain real property alleged to have been fraudulently conveyed by Joseph Brown to A. M.

Brown, and the application of a portion of the proceeds thereof to the payment of a claim of the plaintiff against Joseph Brown. While that action was pending Henry C.. Campbell and Thaddeus B. Kent, two of the appellants herein, who held the legal title to the property, sold the same, and A. M. Brown commenced the present action in the same court to recover from them two thousand five hundred and forty-nine dollars and fifty cents, the amount of certain surplus moneys in their hands, arising from the sale of said property. This cause was assigned to Department Six of that court.

In their answer to the complaint Campbell and Kent alleged that Priest claimed the money, and asked that he be made a party defendant, and that thereupon they be permitted to pay the money into court, and be discharged of all liability therefor. Priest was thereupon made a party defendant to the action, and filed an answer to the complaint of" the plaintiff, and also a cross-complaint, in each of which he alleged substantially the same facts as were alleged in the complaint in the action of Priest v. Brown.

Thereafter the plaintiff united with the defendants Campbell and Kent in a motion to strike out this answer. This motion was granted May 9, 1889, and the case was afterward tried before the Hon. W. T. Wallace, who rendered judgment in favor of Priest, which was entered February 25, 1892. An appeal to this court was taken from each of these judgments, and the two appeals were heard together, and each of the judgments was affirmed December 30, 1893. (Priest v. Brown, 100 Cal. 626; Brown v. Campbell, 100 Cal. 635; 38 Am. St.

Rep. 314.) Upon filing the remittitur in the superior court in the present case, the appellants moved that court for an order setting aside the judgment, or granting a perpetual stay of execution thereon. In support of the motion they presented to the court the records and papers on file in the two actions, and urged as the grounds of the motion that, inasmuch as in the case of Priest v. Brown et al. judgment had been rendered in favor of A. M.

Brown, the plaintiff herein, upon the same cause of action that is presented in this suit, and had been affirmed by the court, that judgment had become the final determination of the rights of the parties, and was not impaired by the subsequent judgment rendered in this action. The motion was denied, and the present appeal is from that order.

The rule invoked by the appellants, that the judgment of that court which first acquires jurisdiction of the subject matter of a cause of action and of the parties thereto will prevail over the judgment of another court whose jurisdiction was subsequently acquired, has no application to the present case. That rule rests upon comity and the necessity of avoiding a conflict in the execution of judgments rendered by independent courts, either of distinct or concurrent jurisdiction.

But the rule itself, as well as the reason for its exercise, has no existence in a case where the actions are brought in the same court, and the judgments are rendered by the same tribunal. There is but one superior court in the city and county of San Francisco, and all of the actions brought in that court are within the same jurisdiction. (White v.

Superior Court, ante, p. 60.) The assignment of causes to different departments does not take place until after the court has acquired jurisdiction of the cause, and is made in order to expedite the business of the court, by apportioning them to the several judges for trial and judgment.

The jurisdiction over a cause, after it «has been assigned by the presiding judge to one of the other judges for trial, remains in the same court, and neither the judge to whom it has been assigned, nor the department over which he presides, has any jurisdiction over the cause distinct from that of the court in which the action is pending. The entire procedure from the commencement of the action to the execution of the judgment is in one court, and there is no opportunity for conflict of jurisdiction, either in pronouncing a judgment or in its execution after it has been rendered.

When, therefore, a suit is commenced in that court upon a cause of action which is then pending before it in another suit, or which has already been carried into judgment, the procedure to be observed is the same as if the two actions were in a court with but a single judge before whom all causes therein were to be tried.

If the defense of a pending suit, or the estoppel of a former judgment, is not pleaded when such defense is available to the defendant, he cannot, after an adverse judgment, avail himself of this defense which he neglected to plead when he had an opportunity to do so, any more than he could avail himself of any other defense which he had omitted to plead. When the present action was commenced, the action of Priest v. Brown et al. was pending in the same court, and had not been tried.

The main issue in that action was whether Priest had the right to subject the lands described in the complaint to the payment of his claim against Joseph Brown. After Priest had been made a defendant in the present action, at the instance of the appellants Campbell and Kent, he filed an answer in which he pleaded the pendency of the former action, and the identity of the issues and parties thereto with those in the present action.

There was thus presented to the court for determination the precise question involved in this motion, and, if this issue had been tried and found against the plaintiff, the judgment of the .court would have been that the action should abate; and the rights of the parties would have been determined by the judgment in the former action.

Instead of taking this course, the appellants asked the court, and the court, at their instance, struck this defense from the answer of Priest, and the cause was tried upon the same issues as were presented in the former action, without any objection to a re-examination of them by the court.

It is too clear for argument that the appellants cannotf after an adverse judgment upon issues of their own selection and framing, interpose a defense to the enforcemeat of that judgment, which they had an opportunity to present for the purpose of defeating the respondent’s claim, but which they industriously sought not to have presented to the court for its judgment thereon. When this cause was here upon the former appeal, the appellants urged the reversal of the judgment because of the prior judgment in the case of Priest v.

Brown, which they had pleaded as a bar to any further litigation of the issue then determined. In holding that this plea of a former judgment was unavailing, for the reason that the judgment had not become final, the court said: “ But while the judgment in Priest v.

Brown et al. was not for the reason stated a bar to the cause of action alleged in the cross-complaint, still the pendency of that action would have been a good ground for the continuance of this until the final determination of the former action, or would have been a sufficient basis for an order dismissing the present action upon motion of the plaintiff, notwithstanding the affirmative relief demanded by the defendant Priest in his cross-complaint, and the refusal of the court to have granted either of such motions would perhaps have been erroneous; but no such motion was made by the plaintiff, and the trial proceeded without objection, the plaintiff still insisting upon the judgment in Priest v.

Brown et al. as an estoppel, and as ground for a judgment in his favor.” In Harris v.

Barnhart, 97 Cal. 546, it was said: “ Where a judgment is ineffectual as evidence in a plea of former adjudication until the time for an appeal therefrom has expired, the true course of a defendant in such a case would be to plead the pendency of the former action in abatement, until the judgment therein became final, when a supplemental answer averring the proper facts in bar of the action would be in order.” The appellants, Campbell and Kent, urge that, as they are mere stakeholders, they are liable to suffer by reason of the different judgments in the two causes.

If, however, they had retained their position as stakeholders, and had complied with the offer made in their original answer to the complaint of the plaintiff by paying the money into court, they would then have been entitled to a judgment discharging them from further liability therefor, but, after Priest had been brought into the action at their instance, they abandoned their position as stakeholders, and defended against his right to receive any of the money.

Having thus assumed a position antagonistic to Priest, they cannot claim any of the consideration due to a stakeholder, but are in the position of any other litigant who has failed to sustain his defense. The order is affirmed. Garoutte, J., and Van Fleet, J., concurred.