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In Wiswall v. Sampson, 14 How. 52, 14 L. Ed. 322, a suit was instituted in equity February 7, 1843. A receiver was appointed June 27, 1845. The property was sold under a decree by the master March 1, 1847. An execution was levied on the property February 24, 1845, and sale made thereunder July 7, 1845. It will be observed that the levy was made prior to the appointment of the receiver, but the sale was subsequent to the sale by the receiver. It was held that the purchaser at the sale by the receiver took the title as against the purchaser at the sheriff's sale. Judge Nelson said that the sheriff could not disturb the possession of the receiver by selling the property, although the levy was prior to his appointment. He should have come into the court having the custody of the property and set up his claim. It is suggested that, upon the authority of this decision, the Telephone Company should have filed a transcript of its judgment and decree rendered by the state court in the suit pending in the District Court, and asserted its claims to have priority in the distribution of the proceeds of the property when sold by the commissioner. There is much force in the suggestion, and unless the state court acquired jurisdiction of, or control over, the property by the institution of the suit, is the correct view. In Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028, this course was approved. There a vessel was seized under foreign attachment, issuing out of the state court. Thereafter libels in admiralty were levied for the recovery of seamen's wages, admitted to be prior liens upon the property. The court held that the marshal was not entitled to take the property from the possession of the sheriff, who should proceed to sell. The libelants were entitled to assert in the state court their claims upon the funds. While the question presented here is not presented in Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. 570, 39 L. Ed. 660, the discussion by Mr. Justice Brewer is pertinent. The federal court, in a suit in equity, appointed a receiver of the property of a railroad company. The defendant filed a bond securing such claims as might be adjudged to be liens on the property, the receiver was discharged, and the property returned to the possession of the defendant. The suit remained on the docket for final disposition. After the discharge of the receiver and the return of the property, a suit was brought in the court of chancery of the state of Tennessee, and a receiver appointed, who took the property into his possession. Subsequently, upon a motion in the federal court, another receiver was appointed. He took the property from the receiver appointed by the state court. He was directed by the court to apply to the federal court for the restoration of the property. This being refused, he appealed. Mr. Justice Brewer thus states the question before the court:

"Had the Circuit Court of the United States, when this property was in the possession of the receiver appointed by the state court, the power to appoint another receiver and take the property out of the former's hands? We are of opinion that it had not."

Referring to a class of cases somewhat analogous to this, the learned justice says:

"Of course, the question can fairly arise only in a case in which process has been served, and in which the express object of the bill, or at least one express

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object, is the appointment of a receiver, and where possession by such officer is necessary for the full accomplishment of the other purposes named therein. The mere fact that, in the progress of an attachment or other like action, an exigency may arise which calls for the appointment of a receiver, does not make the jurisdiction of the court, in that respect, relate back to the commencement of the action."

Applying this language to the instant case, he says:

"While the validity of the appointment made by the Circuit Court on June 6, 1892, cannot be doubted, yet, when that court thereafter accepted a bond in lieu of the property, discharged the receiver, and ordered him to turn over the property to the railroad, and such surrender was made in obedience to this order, the property then became free for the action of any other court of competent jurisdiction. It will never do to hold that after a court, accepting security in lieu of the property, has vacated the order which it has once made appointing a receiver and turned the property back to the original owner, the mere continuance of the suit operates to prevent any other court from touching that property. * * The property ceased to be in custodia legis. It was subject to any rightful disposition by the owner or to seizure under process of any court of competent jurisdiction."

There is a class of cases in which it is held that the test of jurisdiction is found, not in the possession of the property, but in the character and purpose of the suit, the relief demanded, and the necessity for acquiring control of the property to enforce the final decree.

In Farmers' Loan & Trust Co. v. Lake St. R. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667, Judge Shiras, after stating the general rule, that the possession of the res vests in the court which has first acquired jurisdiction the power to hear and determine all questions relating thereto, and for the time being disables all other courts from exercising a like power, says:

"This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons. Nor is this rule restricted to cases where property has been actually seized under judicial process before a second suit is instituted in another court, but it often applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in suits of a similar nature where, in the progress of the litigation, the court may be compelled to assume the possession and control of the property to be affected."

In Palmer v. Texas, 212 U. S. 129, 29 Sup. Ct. 234, 53 L. Ed. 435, Mr. Justice Day, quoting with approval the foregoing language, says: "If this rule is not applied, a court of competent jurisdiction, which by the law of its own procedure has acquired jurisdiction of property, may find itself, as in this case, after final judgment maintaining its right over the property, at the conclusion of the litigation deprived of the subject-matter of the suit."

In Powers v. Grass B. & L. A. (C. C.) 86 Fed. 705, it appeared that the directors of a solvent corporation, without consulting or obtaining the approval of the stockholders, executed a deed of assignment conveying its entire property. The assignee filed a bill in the state court, asking for directions in the execution of his trust and the settlement of his accounts. Pending that suit, several of the stockholders, being citizens of another state, filed their bill in the Circuit Court of the United States, praying that the deed of assignment be declared void, and that pendente lite a receiver of the property of the corporation be

appointed. Judge Lurton held that the deed of assignment was made. without authority and void. Upon the motion for the appointment of a temporary receiver it was argued that the state court, by virtue of the suit by the assignee, acquired exclusive control over the property. The judge was of the opinion that the suit by the assignee did not bring the property within the jurisdiction, nor control, of the state court; that the relief sought in the two suits was entirely different. In regard to the question of power or jurisdiction to appoint a receiver the learned judge said:

"The principle that, where property is in the actual possession of one court of competent jurisdiction, such possession cannot be interfered with by process out of another court, is well settled. * * * There are two classes of cases in which the court first obtaining jurisdiction should be suffered to proceed without any interference by process from another court of concurrent jurisdiction. The first class consists of those cases in which the exercise of jurisdiction by one court will interfere with the prior possession of the res by another court of competent and concurrent jurisdiction.

The second class is where there are two suits pending in different courts of concurrent jurisdiction, in which the parties are the same, and which involve and affect the same subject-matter, and where the jurisdiction of neither is complete nor effectual unless it may, if necessary or proper, exercise exclusive dominion over the res in litigation," citing cases falling in both classes. "The conflict exists in such instances because the suits are in the nature of suits in rem. To make a case of conflict, the two concurrent suits must involve relief against the same res. * If the parties are the same, and the issues the same, and the relief sought involves dominion over the same res, and cannot be effectually granted if dominion over the res be taken by process from another court, it is a case where the second court should regard the jurisdiction of the first as exclusive, and hold its hands until the court first obtaining jurisdiction has terminated the case then pending," quoting the language used in Buck v. Coldbath, 3 Wall. 334, 18 L. Ed. 257.

In Knott v. Evening Post Co., 124 Fed. 342 (C. C. W. D. Ky.), Judge Evans gave the question very careful consideration. His opinion exhibits intelligent labor and affords a valuable mine of learning. Complainant Knott, a citizen of Missouri, having recovered judgment against the Evening Post Company, upon the return of an execution unsatisfied, filed a bill in the nature of a creditors' bill, for the enforcement of his judgment, and to that end asked that a receiver of the property of the company be appointed. The court appointed a receiver, who took the property into his possession. A reference was made to a master to ascertain the assets and liabilities of the company.

Prior to the institution of the suit by Knott, the executors of a stockholder in the company began an action in the state courts pursuant to the provisions of a statute, demanding an inspection of the books of the company. In this suit, about one month after the appointment by the federal court, the state court appointed a receiver of the same property, who obtained permission to intervene and demand possession of the property in the hands of the receiver of the federal court. Upon this motion Judge Evans held that the purpose of, and relief demanded by, the plaintiff in the suit in the state court did not bring into the custody of the court the property of the company; that the averments of the bill, assumed to be true, did not state facts which would authorize a court of equity to seize the corporate assets at the instance of a stock

holder, nor did the pendency of that suit per se create a lien thereon, nor was anything done, or attempted to be done, in the state court which brought the assets of the company within the grasp of the law, either actually or potentially.

Discussing the question of conflicting jurisdiction of courts over property in custodia legis, and citing the authorities, the learned judge reaches the conclusion that

"Wherever suits are pending in two or more courts of concurrent powers, in each of which, at the instance of different plaintiffs, it is sought to control or subject to the demands of creditors the same property, that court alone has the right to do so which first gets the property within its grasp by some recognized mode of judicial seizure, and that, too, without regard to the question of which suit was first commenced. The mere priority of commencement of litigation is not, but the priority of judicial seizure is, the test of jurisdiction over the res when property is the subject of the contention. This test is simple, direct, and practical, and draws a line which is palpable. It is easy of solution and cannot be open to serious mistake."

While the learned judge strongly maintains his opinion, he concludes:

"I, by no means, intend to say that the rule as to first acquirement of jurisdiction over the res depends, in all cases, upon actual seizure, as in admiralty, or under the internal revenue or custom laws, or by replevin, or under an execution or attachment, or through a receivership. The judicial custody to which I refer may sometimes be acquired in a somewhat less positive way. For example, it may, in some cases and as to certain parties, be accomplished by a lis pendens, or as against parties to the suit there may be an equitable levy by virtue of the suit itself, where equitable assets are sought to be subjected by means of a creditors' bill, though in all such cases there must be a suit upon a judgment and, a return of nulla bona. * * But while in these cases the property is only potentially-that is, constructively-in custodia legis, it is nevertheless so under a certain form of judicial stress, and by virtue of a judicial proceeding, the nature of which must be appropriate to that result."

In Sullivan v. Algrem, 160 Fed. 366, 87 C. C. A. 318 (C. C. A., 8th Cir.), Judge Sanborn recognizes, as among the cases in which the court first obtaining jurisdiction over property, retains it, as when

"the due commencement of a suit in that court, from which it appears that it is, or will become, necessary to a complete determination of the controversy involved, or to the enforcement of the judgment or decree therein, to seize, charge with a lien, sell, or exercise other like dominion over it.”

In Mound City Co. v. Castleman (C. C.) 177 Fed. 510, it appeared that a suit had been instituted in a state court of competent jurisdiction to secure partition of real estate. Pending that suit one of the parties sold his interest in the land and thereafter a suit was instituted in the name of his grantee, in the federal court for partition of the same land. District Judge Philips, after stating the facts, said:

"Jurisdiction, therefore, in partition, over the land in question, had vested in the said Cooper county circuit court, before Ben. T. Castleman conveyed his interest in the land to the complainant company, and, of course, prior to the institution of the suit in this jurisdiction. It is a well-settled rule of law that the jurisdiction of the state court over the res, i. e., the subject-matter of the partition of this land, was exclusive of that of every other court subsequently undertaking to exercise such jurisdiction; this for the obvious reason that, as the judgment to be rendered by the court, first in time, to be effective,

must operate on the land itself, the control and possession of which is essential to accomplish the very ends of the proceeding."

The decree dismissing the bill was affirmed. 187 Fed. 921, 110 C. C. A. 55. Judge Sanborn adds to the reasons assigned by the District Judge:

"The jurisdiction of a court over the subject-matter or (in) a cause once lawfully acquired includes the power to enforce its judgment or decree and to protect the titles of those holding under it from any attempt to avoid or annul them. · * The fact clearly appeared from the petition as soon as it was filed in the suit in the state court that it would become necessary to a complete determination of the issues tendered and to the enforcement of the decree sought for that court to exercise its dominion over the specific land described in the petition and to divide or sell it. The commencement of that suit, therefore, withdrew that land from the jurisdiction of the federal court below and from the jurisdiction of every other court, so far as necessary to give effect to the final decision and decree in the state court and gave to that court the power to retain the control over it, requisite to protect the titles of those who should hold under its decree."

In McKinney v. Landon, 209 Fed. 300, 126 C. C. A. 226 (C. C. A., 8th Cir.), Judge Hook, after stating the general rule, says:

*

"It is essential to the dignity and authority of every judicial tribunal and is especially valuable for the prevention of * conflicts between federal courts and the courts of the states. As between them it is reciprocally operative-mutually protective and prohibitive. The most difficulty arises in determining when possession of property has been taken, when jurisdiction has attached to the exclusion or postponement of that of other courts. It is settled, however, that actual seizure or possession is not essential, but that jurisdiction may be acquired by acts which, according to established procedure, stand for dominion and in effect subject the property to judicial control. It may be that by the mere commencement of an action, the object, or one of the objects, of which is to control, affect, or direct its disposition."

B. & O. R. R. Co. v. Wabash R. R. Co., 119 Fed. 678, 57 C. C. A. 322, Williams v. Neely, 134 Fed. 2, 67 C. C. A. 171, Hardin v. Union Trust Co., 191 Fed. 152, 111 C. C. A. 632, Hirsch v. Independent Steel Co. (C. C.) 196 Fed. 104, and Smith v. Jennings, 238 Fed. 48, 151 C. C. A. 124, are illustrative of the rules by which courts are guided in similar cases.

We have discussed and quoted from a larger number of cases than is usual or perhaps necessary, for the reason that, while the decisions are not contradictory, many of them fall within different classes, and language is used apparently conflicting, until the distinguishing facts are observed.

After careful consideration and anxious concern to place the instant case in the class to which it belongs, we reach the conclusion that, certainly as between the parties to the two suits who were, for the purpose of dealing with the property the same, by the institution of the suit by the Telephone Company to enforce its judgment lien and bring in all other lienholders and bring the property to sale for their satisfaction, the circuit court of Tyler county acquired exclusive jurisdiction over the property of the Railroad Company and that the retention. of such jurisdiction was necessary to enable that court to enforce its decree and administer the remedy to which the parties were entitled. It is suggested that H. M. Jackson was not a party to the record.

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