GATES v. BUCKL (Circuit Court of Appeals, Eighth Circuit. January 27, 1893.) No.16l.
Thequestiop of the jurisdiction of the circuit court in foreclosure proceedings cannot be considered in the circuit court of appeals, where the only decision given and order made below was on an application for an injunction to restrain proceedings in the state court concerning the same subjectmatter, as in such a case the foreclosure is still pending in the cireuit court. ' When a plea to the junsdiction of the circuit court has been overruled, the case must proceed to tiDal decree upon the merits before any appeal can be taken on the jurisdictional question, appellant then having the right to go to the S1Ipreme court on the qnestion of jurisdiction, ,or to bring its entire case before the circuit court of appeals. McLish v. Roff, 12 Sup. Ct. Rep. 118, 141 U. S. G61, follOWed.
ApPEAL-JURISDICTIONAL QUESTION-FINAL JUDGMENT.
FEDERAL COURTS -JURISDICTION STATE COURT.
Where an attachment is levied on realty in a suit in the state court. and proceedings in equity to canccl an allegert fraurtulent conveyance of the attached property are also instituted therein, the United States circuit courIJ cannot acquire jurisdiction as to the land for the time being, so as to enable it to enjoin the litigants in the state court from proceeding therein, at the instance of a party to such equitable suit, who has filed a bill in the federal court to foreclose a mortgage upon the land in question.
Appeal from the Circuit Court of the United Smtes for the Eastern District of Arkansas. In Equity. Suit by Charles L. Bucld against Victor Meyer and others to foreclose a mort,gage upon realty, to which Ferdinand Gates was made a party defendant by amendment of the bill aver· ring that he claimed a lienupon the mortgaged realty by an ment thereof in proceedings by him in the state court. Thereafter an interlocutory injunction was granted by the circuit court restraining said Gates from applying to tM smtecourt for an injunction against the prosecution of the foreclosure' suit by complainant. Defendant Gates appeals. Reversed. Statement by SHIRAS, District Judge:
On the 15th day of June, 1889; Victor Meyer and Evelyn K. Meyer, residents of the city of New Orleans, La., executed a deed of conveyance of certain realty situated in Jefferson countY,Ark., known as the "Corinne Flace," to the Farmers' Land & Loan Company, a corporation created under the laws of the state of Louisiana, for the pxpressed consideration of $40,000, of which amount $24,000 were to be paid in certificates of the capital stock of said corporation, and for the remaining $16,000 the said corporation was to issue coupon bonds for $1,000 each, payable to bearer, and coming due July 1, 1909, and to secure the payment of the bonds, principal and interest, thE' said Victor Meyer reserved in the deed a vendor's lien upon the property conveyed, and the Farmers' Land & Loan Company also signed said conveyance, thereby making the same, on its behalf, a mortgage to secure the payment; of the bonds representing the $16,000 of the purchase price. This instrument was filed for record in the proper office of Jefferson county, Ark., on the 29th of March, 1890. On the 25th of December, 1890, Ferdinand Gat-es brought an a'ction at law in the circuit court of Jefferson county, Ark., against Victor Meyer and Adolph Meyer, partners under the firm name of V. & A. Meyer & Co., to recover the sum of $10,000, and caused a writ of attachment to be
FEDERA,L .RE:PORTER i'Y(ll. 58.
is.'3ued against said defendants as nonresidents of the state, the same being levied on the realty known llfJ the "Corh:me Place." In this action, in due time, the plaintiff obtained judgment against the 'attached property, constructive service of, of. the, having the defendants therein, in accordiwtJe 'wItli the provisions of the statutes of Arkansas. On the 6th of January, 1891, Gatet'\instituted a suit in equity in the circuit court of Jefferson county against Victor Meyer, Adolph. Meyer, and the Fartpers' setting the 'fact ot the and service of the. R\taq4P;1ent in the law .,the rendition of the jU.dg.m. Meyer t6roe..· " .th,e l' 'a.Ve.tti.Ii.g LO\lpCOmpany, . an.ce 0.f th..e realty.was . ..n.v.e.Y. as above stated, by " Victor. ..1: tbe.J:'ein 11\:n· , . Lapfl & th....at. the co a fr!111d, and. ,', , }'ei'dinand Gates as l!- QI'editor of said Victor Meyer, and prayiDg'that· e saml! might be set aside and canceled. Upon an application made when the bill in equity was filed, to wit, on January 6, 1891, the circUit, court of' Jefferson 'county receivel' Gabe Meyer WilS. insaid suit, wlth:autlloHttto take charge of the property involved iu the to collect :the, let).ts coming therefrom, atl.d otherWise care for the saine' lihd,constrnqtivl!(se'rV!ce MtDg Imide upon the nonresident defendants. th,e take testimyny by depositions in suppa.rt of the allegatrons of his bill. ' ott the'1.6thday i 6:f' February, 1892, Charles. L. Bucki filed a bill in equity in the United States :circitiit court for the eastern district or· Arkansas against the Farmers' Land & Loan Company lUidVictOr Meyer and Evelyn.K. Meyer, wherein it, was averred that the complainant was a citlzen''of 'thEr state of New York, beingc1tizens of the state of'( LdUisianlli .and' thatc&l1\plainant the owner of the 16 coupon bonds the Fartners' Land & I,oanComPany in part paY'lIlent for the purchltileof the Corinne place, and wb1chwere ll.e<mred by the mortgage included in .the' ptovisions of the. joiIit exeCuted by Vietor' Meyer and wife and the Farmers' Land & Loan Company under date of JUne 15, 1889; and that through the faUureWpay the interest coupons the whole debt had been ,be due in .to ,provisions to that effect contained in the mortgage given 'to 'payment of the bonds, wherefore a foreclosure of the vendor's and mortgage lien on said realty was prayed in due form. on the <16th 'of Febtuary;' 1892, the United States circUit court, upon the $hQwil)gthat the suit was for Ule foreclosure of a mortgage upon realty sitwithin the district( ft,Jld that the defendants were nonresidents, upon whom. pel'S<)nal service cOUld.. not be made within the state of Arkansas, made lrobstitutedsth·vice, CQpiel!! of which were. dUly served upon the fiamed defEmdalits'in. the' city of New Orleans, La., on the23d of February, 1892. On' the 2,5th of'FebruatY, 1892, the. complainant filed an: amendment is b ill1m aking. ,Ferd.iJ;la,nd Gates a defe.ndant, a.verring that said Gates .. . .·. lI,1med, a UeD, uJlOn the. mortgaged realty by reason of the attachment pro. 'edlngSinthe state court, but averring also that the lien, if any existed, was inferior to that of the'<mortgage. On the 16th of June, 1892, Ferdinand Gates ,appeared in the federal court llp4 filed a plel\. f ,the, jurisdiction of that oourt over the bill for the W;J;eOIosw:e. of f.1le, tw.o groupds. In the first d1:Vision of the plea was recited the hrlngiIig, th\l, aftachmeiltp!:";>eeedings and the suit in equity iIi court, together with the order appointing a with the ,fnrtllW.'I;tVerment that, upon learning. that Charles L. Bucki to. the bonds secured by 1:J?e he, the said had,llII;lended hisbWPl,the state court, making Bucki and Evelyn K. Meyer . defep,dilnts .therero,. and praying that they be. restrained from foreclqsiDg the. the suit the federal court, and that a restrainto that effect be prE:jssedtp a hearing. In the. second division It was averr!id ,that none of the defendants in the foreclOSUre pro'wereresidentsot,tbe state of Arkansas, and therefore. the oourt was to grnJJ,t a decree of foreclosure. . , UJlPIl the filing of the plea ,tQ the jurisdiction by said Gates, the complainant in the foreclosure file4 ,the following paper in said suit: "The cqmplainantrespectfully.representsro this court that, being the owner and 9t certainnegotl,a,Qle VromlssorynotEl$ by the said defendant, apd, having .acquired the saml'! for a valuable consideration, before maturity,
GAtES ·V. Bl;CKI.
in due course of buShleSli, and:\vitllout notice of any 'defense thereto, he, on the 13th day of February, 1892, instituted suit in this coun for the foreclosure of the mortgage executed by: ilie said defen9,ant for the security 0;( B:\id notes" said mortgage conveying the plantation in Jeffersoll ,COlUlty, in 'this Ai!?trict, known as the 'Haskell Prior. to the institution of said suit, It now ltPpears that the defendant, F¢rdlnand Gates, had brought suit by, littachmeht in the Jefferson circuit court 'agalnst"one Victor Meyer and one Adolph Meyer, claiming that said plilntation is the property of said VlcWrand,.io\dolpl;l:Meyer. In said, suit the complai.nai1t was not m3.cl.e a party defelldant, and, as M was the ,holder of negotiable paper, purchased before Its maturi1:l" and whicp did not mature until the institution Cot the suit by, thecOIllplainimt in this court, yet, nevertheless, the B8id Ferdinand Gates has, by ,an amendment tel' his complaint,- made long after the institution of this suit; to bring -the complainant in .the. by him institu #1-, ,!lJUd to restrain the complarnant froPl proceeding wlth this suit, all Qf w "as the complainant submitS, is a high contempt of the jurisdiction of this coui1:, and the oomplatnant therefore prays for a rule upon the said Ferdinand Gates and MorrlsM. Cohn; his attorney, to show cause why they should not be punished for the said contempt, and for an injunction restraining t11e said Gates from the fUl'ther prosecution of said sult as the,complainant." On the 17th of June, 1892, this application for an injunction was heard, and the following order was made and entered of record: "Now, on t'his day comes on to be heard the application of the complainant for an injunction to restrain the defendant, Ferdinand Gates, from applying to the circuit cour,t of Jefferson county for an order enjoining the complainant and his solicitors from the further prosecution of thiS suit; and comes the complainant, by U. M. & G. B. Rose, Esqs., his sOlicitors, and also the defendant, Gates, by Morris M. Cohn, Esq., his solicitor, and the cause is submitted to the court on the bill of complaint and the amendments thereto, and on the pleas of the said Ferdinand Gates; and, the court being sufficiently advised in the it is considered and decreed that the said Gates, his attorneys and, 8011cltorii, be forever enjoined from applying from the said circult court of Jefferson county for an injunction restraining the plaintiff and his solicitors from, the prosecution of this sult.To this ruling and decision the said defendant, Gates, excepted at the time, and here in open court prays an appeal to the circult court of appeals, which is granted; and the court doth order that the appellant, Ferdinand Gates, do execute and file a cost bond herein, pursuant to the rules of the circuit court of appeals, in the penal sum of two hillldred and fifty dollars, to answer all costs if he shall fail to sustain said appeal." ' From this order an appeal was perfected to this court, the errors assigned being the following: "(1) The court below had no jurisdiction of the cause, because neither the complainant nor any of the defendants were residents or inhabitants of the district at the time this sult was instituted. (2) The court below had no, and could exercise no, jurisdiction over the res, inasmuch as that was in the custody of a receiver of the state court in the suit of, Gates. (3) That, in any event, the presence of the said receiver as a party in this cause was indispensable, and, failing, the court below had no jurisdiction of the cause. (4) That a restraining order from the state court was appropriate under the circumstances, since here was an attempted clouding of the title sought to be cleared in the state court, in a matter whereof that court had first obtained jurisdiction."
Morris M. Cohn, for appellant. U. M. RoOse and George B. Rose, for appellee. Before CALDWELL and S4,NBORN, Circuit Judges, and SIDRAS, District Judge. SHIRAS, District Judge, (after stating the facts.) By the first error assigned it is intended to present the jurisdictional question, whether, under the provisions of the act of congress of August 13, 1888, read in connection with section 8 of the act' of March 3, 1875,
2mt to foreclose a on realty can be brought in the fedeIti.court of the district wherein the land is situated, if neither pal't1.tili'the suit is a resident of that district, but if they are in fact of different states. As we construe the record submitted,.to us, this qtiestion is not in the present appeal, andoa:onotbe considered by! this court. By the second division or, count ()f the plea filed by appellant in the circuit court this question,:o( jUrisdiction was made an issue in the case, but it does not appea;r."tllat r it has yet been passed upon by that court. The shows that 'on the 16th of June" 1892, the appellant, Gates, filed ·ql.l.ea.'.in.. the. c.ase, presenting questions of jurisdiction and practice,!'t#d 'Qnthe same day the appellee, Rucki, filed an application for "anJnjrinction restraining Gates from further prosecuting the sultm. the Jefferson county circuit court as agajust him. The record further recitEi9, under date of June 17, 1892, that "now, on thilt dtLycomes onto be heard the application of the complainant fQr ap:"wjunction to restrain the defendant, Ferdinand Gates, :frP;ni' .' a,pplying to the circuit court of Jefferson county for an order enj0ming the complainant and his solicitors from· the further of!this suit, * ,** and the cause is submitted to the urt.".. . ()n tbe bill. of com.Plaintand. the amendments. thereto, and .. . 1;pec"pleas of the said F'el'dinand ,Gates, and, the court being suf'ficieritly, advised in the premises,. it is considered and decreed thattJlre:$aJi.d Gates,hisattorneys and solicitors, be forever enjoined court .of county for an the pla.mtitY and his sohcltors.from the prosecution of recital it would appear that the only matter submitted to the circtlitcoul'twas the application for t:p.e of injunction, yet, ':if the: statement'tlia:t the Cause w¥ submitted to the court on bill a,Iidtheplea,s .thereto i,s.. to be. construed to mean that the entire submitted, it certainly does not a.ppear that the circllit 488 as yet passed upon the jurisdictional questions pleas filed by the defendant, Gates. The only deQif$i9n allQ., or4er; Jllade is tb,at Gates.is enjoined. from applying to the cirmiitc(turt of. Jefferson oounty for an injunction restraining.. p. ... ' BU.C.k.i., from the prosecution of th.e. suit the federal court. ." The effect of the orde:r was to leave Buckl free to ',the proceedings without hinderance, but no progr8S$ was. made in these proceedings, nor did the circuit court· take any action therein. There can be no doubt that the foreclosure suit is still pending in the circuit court, and that no appealable order 01' decree has been rendered therein, sltve the order allowing the writ of injunction. ,. :d;when 1jhe·.cil'cuit epurt passes upon the jurisdictional questions presented by the pleas filed by the defendant, Gates, for aught we know the ruling may be in his favor. If the bill should be dismissed for want <!f ,jwisdiction, then the appeal would be 0 the supreme oourt, to thil!! court. If the plea to the jurisdiction should t4e .case must proce,ed to a final decree on .the merits:¥ore any appeal· could be on the jurisdictional ques&.
GATES V. BUCKI.
tiQD, it being then open to the defendant, Gateil, to go to the supreme court on the single qUeiltion of jurisdiction, or to bring the entire case before this court. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. Rep. 118. The only question brought before this court by the appeal taken in the CMe is as to the propriety of the granting of the writ of injunction that was ordered on the 17th of June, 1892, in respect to which interlocutory order an appeal was permissible under the provisions of section 7 of the act of March 3, 1891, creating this court. In support of the position of appellant that it was error to grant the writ, it is contended, in the first instance, that the record on which the lliPplication for the issuance of the writ was based shows upon its face the fact of the pendency of the prior proceedings brought in the state court attacking the validity of the mortgage sought to be foreclosed, and therefore the United States court should have declined to take jurisdiction of the foreclosure suit. On part of the appellee it is contended that the pendency of an action in the state court, even if between the same parties, and for the like is not cause for abating an action in the federal court, because the courts are created by different sovereignties. That this is the general rule in regard to actions pending in courts of different jurisdictions is well settled. Stanton v. Embry, 93 U. S. 548; Gordon v. Gilfoil, 99 U. S. 168. When the jurisdiction of the courts, in cases between the same parties, involving the same issues and seeking identical remedieil, is dependent upon personal service of the original process upon the defendant, had within the limits of the territorial jurisdiction of the courts, then it is possible to proceed with each ca.se without bringing about an unseemly conflict of jurisdiction.· In some cases each court can proceed to final judgment without conflict. In others the first judgment rendered may be 'available to the prevailing party as a plea in bar. to the action still pending. When, however, the proceedings are in rem, or are of that kind wherein jurisdiction is based solely upon the possession or control of property"and in which the final judgment of the court can only be enforced against the property taken into the poosession or under the control of the court, then a different rule applies. When, by the issuance and levy of process, or the filing of a bill in equity, property, either real or personal, is brought in custodia legis, the control and jurisdiction over the same is exclusively with the court which thus acquires. legal possession thereof. To sustain the jurisdiction created by the seizure of the property, the possession and right of control must be continued, not only until final judgment is pronounced, but in some cases until that judgment is l!!atisfied. If it was permitted to one court to seize upon or subject to its jurisdiction property already within the custody of another court, it could in this way terminate the jurisdiction of the other court, but in turn it would be subject to the same liability, and by such a system of capture and recapture both courts might be disabled from reaching a final judgment, or from enforcing it against the property in dispute. Hence the rule is well settled that, so long as prtlperty
"The forbearance ,vhkh', of jurisdiction" a,dmillisterca tindel' a single system, exerciSe' towards each otller, whereby conflicts are avoided, by avoiding Inteilference with the process of each other, is a principle of GawUy, higher sanction than the'utility which comes ,state GOUl'ts and those of the United- States it is from GOJlcord; something more. It is a principle of right 3J].d of law, and. therefore, of necessity. It leaves nothing to i 4.lscretion or mere convenience. These courts do not to the sarne'system, so far as their jurisdiction Is concerned, and, although they coexist In the same space, they are independent, and have no cOlllmon superior. They exercise jurlsdi\ltiOll, it -is true, \Vithln the same territol'y, but not in the sawe plane; and When one takes into its jurisdiction a lipeeilic thing, that resls}as mueh withdrawn from the judicial power of the other as If It had been carried physically into a different territorial sovereignty.To .attempt to seize it by a foreign process Is futile and void. 'I'he regulation ofproces9, andthl! decision of que9tlollS"relatlng to It, are part of of the from which it issues,"
of one court, it'cannot be reached 01'; betaken ,anotb.er' MUtt, created by a dUferent sovereignty.- !Peclt" v. Jenness, 7 How. 612; Taylor v. Carryl'i 20 How. Freeman v. Howe,24 How. 450; Watson v. Jones, 13 Wall. 679; StoutV".Lye, 103·n.s. 6 8 . , · " , .. , " TIlls principle' is clearly ,stated in Covell. v. Heyntan, 111 U. S. 176, 182, 4; Sup" :Ct. Rep. 855, in which Mr. Justice Matthews, slleaking 'for the '.court, "said:, "
When; 'ithf'lrefore,by the levy of process either mesne or final, or by the beginning of proceedings in rem or quasi in rem, property, either real or personal, has been brought withiIi the custody or COIlltrol of a court of the !system, such property cannot be subjected to the process,nor be brought within the control, of a coort of the other system, and the right which the latter court would otherwise have to seize the '(>l'operty'orto found jurisdiction on the poosession or control, thereof is' placed in aMyance, and cannot be exercised until the conrt having the control and custody of the property parts with the same. Buck v. Colbath, 3 Wall. 334. Applying these well-settled rules to the facts of this ease, what is the result? It appears on the record that 'on the 25th of December, 1890, Ferdinand Gll.tes brought in the staM conrthis action at law against Victor and Adolph Meyer, and-· caused a writ of attachment to be issued arid levied on the realty known as the "Corinne Place." On the 6th of January, 1891, hiving obtained judgment in the action at law, Gates filed in the state court a bill in equity to set aside and cancel the mortgage preViously executed upon the attached property by one of the judgment debtors. The proceedings in equity were ancillary to the action at law, and were in fact merely to aid in the enforcement, of the lien created by the levy of the attachment. By the proCeedings thus instituted, the state court was charged with the duty and with. the jurisdiction to hear and determine the question whether the deed and mortgage executed' on the attached realty were or were not valid as against the· attaching creditor. ' ltis' said in argument that the state court did not acquire jurisdiction over the property in the equity proceedings, because, up' to the time of the bringing of the foreclosure suit in the federal court, Charles L; Bucki, who claims to be the sole owner of
the bonds secured by. mortgage, had not been made a party to the suit in equity in the state court. There are several.suftlcient answers to this. The jwisdiction of the state court is. primarily based upon the levy of the attachment in the action at law. It was the levy of process on the property which conferred jurisdiction, and not service of process on persons who might have interests therein. The ·institution of auxiliary proceedings· in ··equity enabled that court to deal with the property, and to adjudicate all conflicting interests tbat might be asserted to the property, and which were necessary to be heard and determined in order to enforce the lien of the attachment. To that end the state court had the power to cause all persons who were known to assert claims to the realty. to be made parties to that proceeding. When the bill in equity was first filed, the defendants therein were Victor Meyer, the grantor ill. the fraudulent conveyance, Adolph Meyer, tpe Farmers' Land & Loan Company, the grantee in the deed attacked; and subsequently, when it appeared that Evelyn K;. Meyer and Charles L. Bucki might be interested in the question of the validity of the deed and mortgage, it was ordered that they be made parties· defendant. The mere fact that before this order was made by the state court Bucki had filed in the federal court a bill of foreclosure did not affect nor defeat the right of the state court to proceed with the cause pending before it, nor with the right to make Bucki a party to that proceeding. It thus appears that when the bill of foreclosure was· filed. in the federal court by Charles L. Bucki the property included in the deed and mortgage sought to be foreclosed was then in the control and possession of the state court, and was being dealt with in a proceeding in equity, brought expressly for the purpose of determining whether the conveyance under which Bucki claimed a lien upon the property was void as against the attaching creditor. No fact is shown upon the record which in any way impeaches the jurisdiction of the state court over the property affected by the conveyance sought to be avoided, nor over the question of the validity of the conveyance nor over the rights and interests of the parties now· or hereafter brought into the case, so far, at least, as such rights are affected by the dispooition of the property in dispute. It cannot be questioned that by the levy of the writ of attachment, and the institution of the proceedings in equity to settle the title to the attached property, the jurisdiction of the state court over the realty became of the nature of jurisdiction in rem. Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U. S. 714; Mohr v. Manierre, 101 U. S. 417; Heidritter v. Oil-Cloth Co., 112 U. S. 294, 5 Sup. Ct. Rep. 135. It follows, therefore, that this property, being thus in the custody of the state court in proceedings intended to affect the title and control the disposition of the same, the property was for the time being withdrawn from the jurisdiction of the federal court, and when the foreclosure suit was filed in that court it could not and did not bind or reach the property, because the same was not then within the plane of federal jurisdiction. That the facts dis-
basecle;tr1y within tllis tule so often ehunclated of tp.e United States, is made apparent bey6pd'Wvn if :\ye each court should proceed to judgment in th'e cl;tse pending before it. Ifin suit in equity in the state it ,s!lOuldl>eltdjudged that tM of the to the Farmers',La,rid &. Loan Oompany was fraudulent 3:,ij:d void' as .a.ga,inst the littachiilg creditor, and the attached property should be sold under judicial process, a title wduld then accrue to' thep1,lrc1iaser at that ' If in the suit in the United .states circuit court a decree of foreclosure be granted, arid a sale should be had, and a deed in pursuance be, Il).a:(}e, another, t,itle to the property would be in, format conflict of right and title would be created. 'l'l1ese antagOOlistic titles could not both be valid. One must be parl1mount ,and, superior the other in the sense that it would convey, the propertyapd, settle, the ownership thereof; and the other title, would be being wholly nugatory and void. The test of ,superidrity would be ,the question of jurisdiction over the property. Both cases are' in the nature of proceedings in and j,urispiction is dependent, ppon the fact of control over the property; all,d ,lmder the fMts diSclOSed on the record before us it is entirely clear that theres is in the possession, and therefoil'e within the jurisdiction of the state court, and, of necessity, is without the jurisdictioll dr the federal court. ., We do not hold that the bill for th,e foreclosll1'e Of the might not be filed in the federal court dpring the pendency of theproceedi,ngs in the state court. The latter do not cQIltemplatetheforeclosure of the mortgage, even if the state court shouldsllstaiilthe thereof, and should set aside the attachment leVY. No good reason is now perceived why it was not open to Buc1d to file the bill in ,question, as it might. under some circumstances, be necessary to do so in order to prevent the, nmning of the statute of lhhitations. When, however, the bill was filed, it did ;not affect the proJ,lerty then in custodia legis by reason of the in the state court, and there: fore the federalconrt c01].ld not ,rightfully intel:'fere with the case pending in the state court.. The right of federal court to proagainst the under the bill of foreclosure is in a.beyance sO long as· the state court has the custody of the property, but when such custody ceases· by act of the. state court, and the property ceases to be in custOdia legis, then the jurisdiction of the federal court may attach,. and the foreclosure suit may be proceeded with. If the judgment of the state court sustains the validity of the mortgage, then its judgment will be in aid of, rather than a bar to, the foreclosure proceedingli!; but, if its judgment is against the validity of the mortgage, then the same may be made a bar to tile foreclosure. suit. This, however, is not a question that we are llecessarily called upon to decide finally at the present time. Assuming the bill for foreclosure was properly filed in the United States the question is. whether the writ of injunction was rightfully granted under .the .facts appel;tring on the record at· the time the same was granted. The application fi>r the i8suance of the
writ prayed "for an injunction restraining the said Gates from the further prosecution of said suit as against the complainant;" that is, an injunction was asked to restrain Gates from making Budd a party to the suit in the state court, brought to determine the validity of the mortgage. It has been already shown that the state court has exclusive jurisdiction of the realty and of the proceedings to determine the validity of the mortgage, and that court had the right to cause to be made parties to that suit all persons interested in or asserting claims to the property under the mortgage execut d by Victor Meyer. It was not for the United States circuit court to dictate to the state court as to who should or who should not be made a party to the proceedings pending before it, and therefore it was, we presume, that the federal court did not grant a writ to the affect asked for by the applicant. The writ actuaJly granted was to the effect that Gates and his attorneys were forever restrained from applying- to the state court for an injunction restraining Bucki from the prosecution of the suit for the foreclosure of the mortgage pending in the federal court. On behalf of the appellee it is argued that the courts of the United States will not suffer state court"! to with the exercise of their proper jurisdiction, and will proceed against the party seeking to make such use of the state courts, either by injunction or for contempt; and in support of this doctrine counsel for appellee cite the cases of French v. Hay, 22 Wall. 250, and Dietzschv. Huidekoper, 103 U. S. 494. The principle that a court which has rightfully taken jurisdiction over a subject-matter of litigation, and has adjudicated the rights of the parties, is bound to secure to the prevailing party the fruits of the litigation, and to that end, when necessary, by injunction or otherwise, may restrain the other party from attempting to evade or escape the effect of the judgment by bringing proceedings in other courts, according to the ruling of the supreme court of the United 'States in the cases last cited, and subject to the limitations therein contained, is, in its application, not confined to courts of the United States, but embraces also' the courts of the several states. It is just as much the duty and the right and within the power of the state courts to secure to litigants therein the full benefit of the judgments therein pronounced as it is in like circumstances the dutv of the federal court to extend protection to litigants within its jurisdietion. Upon the face of the record in this case it appears that the state court has jurisdiction in the snit brought tOo determine the validity or invalidity of the conveyance of the realty from ;-Ueyer to the Farmers' Land & Loan Company, and to that suit Rucki is made a party, and the way is open to him to appear in that suit, and to contest the claim of Gates that the conveyance is void as against him. If, upon such appearance and contest, it is decided that the conveyance is valid, then Bucld can proceed with the foreclosure suit in the federal court, and the decree of the state court will estop Gates from asserting in the federal court that the mortgage is void. On the other hand, if it is adjudged in the state court that the conveyance is invalid, then such decree will bar the right of Bucld to proceed with the foreclosure proceedings. In that event Gates will
have the right to (IDfQrcehis lien by attachment, merged into the judgment, by sale of the realty free and clear from the incumbrance attempted to be created by the conveyance to the Farmers' Land & LoaJ;l Company, and it will. be the duty of the state court to and,protect his rights in this particular. If Bucki floes not appear in the equity proceedings pending in the state court, still that court, having possession of the realty, has the right to deal with the property, and can, so far as it is concerned, determine the vaJidity of. aJl elaims or liens belonging to the persons made parties to that suit, whether served perSQnally 01' constructively. It thus that when the foreclosure bill was filed in the court bel9W the realty included in the mortgage was: in the custody of its rightful of the state court, and that court, in the due the question of the validity of jurisdiction,. was proceeding to the conveYanoofrom Meyer to the Farmers' Land & Loan Company, including the mortgage thereby created. What steps should be taken and . what process should Qe. issued in connection with the proceedings before it is prlmarllyfor that court to determine, and we fail t06nd in the reCQrd before us any ground upon which to base the right to i!3Sue the writ of inju:o.ction which was in fact granted It is not made to appear that the circuit court by the court has now, or. at present can obtain, jurisdicti&n to proceed with the foreclosurefilUlt. as the property, which is the subject-matter of the proceeding, is without the jurisdiction of the federal court. Under these circumstances, the right to decree a foreclosure of the mortgage and a sale of the realty therein described is in abeyance, and cannot be made effectual against property which is not subject to the jurisdiction of the court. The federal court is not, therefore, of a.ny control or jurisdiction over the realty described in the mortgag-e which authorizes it to enjoin the litigants in the state court from applying to that court for such relief as that court may deem is equitable and necessary. It follows that the o'l'der appealed from, granting the writ of injunction in question, must be and is reversed, at cost of appellee.
INDIANAPOLIS WATER CO. v. AMERICAN STRAWBOARD CO. (C4'cuit Court, D. Indiana. February 6, 1893.)
NUISANCE-POLLUTION OF STUEAM-!NJUNCTJON.
, The discllarge of refuse matter from a strawboard factory into a non· navigable river, used by a water company owning land fronting on and extending along said river, as a source of supply for furnishing a city, its inhabitants, and others with water for domestic,. manufacturing, and other purposes requiring purity of the supply, thereby fouling and polluting such str'*lID, is necessarily a cj)ntlnuing nuIsance, for which no plain, 11-dequate, and complete remedy exists at law, and injunction will lie to restrain such discharge. A water company engaged lnsupplylng a city with water, and owning land bordering on a nonnavigable river, from which a portion of its supply