LAKE NAT. BANK v. WOLFEBOROUGH SAV. BANK et al., 78 F. 517

COLT, Circuit Judge. This is an appeal from an interlocutory decree appointing a receiver, and granting or continuing an injunction. The appellees (complainants below) have filed a motion to dismiss the appeal unon the ground that this court has no jurisdiction. In support of this motion, it is urged that in the assignment of errors the appellant raises only the question of the jurisdiction of the circuit court, and that under the act of March 3, 1891 (26 Stat. 826), this court cannot entertain an appeal which presents solely this question.

Section 5 of the act declares: “That appeals or writs of error may he taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases: In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision.” Then follows a list of other classes of cases in which an appeal may be taken to the supreme court. •

Section 6 provides: “That t’He circuit courts of 'appeals established by this act 'shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the district court and the existing circuit courts in all cases other than those provided ' for in the preceding

section of this act,” etc. ■ • ■ ' •

Section 7, as amended by Act Feb. 18,. 1895 (28 Stat.,666),,.provides as follows: v, “That whferé, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused, or dissolved by an "interlocutory order or decree or an application to dissolve an injunction shall be -refused in a 'case in which an appeal from a final decree may be taken under the provis.ons of: this act to the circuit court of appeals, an appeal may be taken from such ■interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction to the circuit court of appeals.” •'■■By

section 7 an appeal lies to this court in any case in which an appeal would lie from a final decree under the provision of this act. , In order, therefore, to determine the jurisdiction of this ■court over the present appeal, it is necessary to inquire whether it could take jurisdiction on appeal from final decree. In. McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, it was held that ah appeal to the supreme court, under

section 5, only lies after final judgment, and that at that time the party against whom the judgment ibf.the court had been rendered has his election either to take the 'question of jurisdiction alone directly to the supreme court, or to 'appeal to the circuit court of appeals- upon the merits of the case, as well as upon the question of jurisdiction. In the latter event the circuit court of appeals has authority to pass, not only upon •the merits'.of the case, but also.upon the question of jurisdiction; and it may then, if it deem proper, certify the question- of jurisdiction to the-supreme court. See, also, U.

S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39. As this case may be appealed to this court from a final decree, under the construction given to sections 5 and 6 by the supreme court, it follows that we have jurisdiction over an appeal from an interlocutory order under

section 7, although such appeal raises only the question of jurisdiction. The provisions of ■

section 7 are of a highly remedial character, and •should not receive- a narrow construction. These provisions were /evidently intended to afford a speedy review by an appellate tribunal of all interlocutory orders or decrees granting or continuing injunctions, unless such review was clearly forbidden by the other provisions of the act. /' . The appellees further urge in support of their motion to dis-/tniss that the -injunction was merely incidental to the receivership order, and therefore not appealable. under

section 7.-: ■ The interlocutory decree ordered the defendant, its officers and agents, forth/with to deliver the property held by them into .the hands of the Receiver, and:'absolutely enjoined them to refrain from ■ interfering ⅛-itlrthé property. While the injunction order was . incidental to the appointment of a receiver, it was not merely nominal, but formed a substantial part of the decree. The question whether an interlocutory injunction was erroneously or improvidently granted is appealable to this court. Blount v. Société Anonyme, 3 C. C. A. 455, 53 Fed. 98; Davis Electrical Works v.

Edison Electric Light Co., 8 C. C. A. 615, 60 Fed. 276, 277; Construction Co. v. Young, 8 C. C. A. 231, 59 Fed. 721; American Paper-Pail Co. v. National Folding-Box & Paper Co., 2 C. C. A. 165, 51 Fed. 229. Potter v. Beal, 2 C. C. A. 60, 50 Fed. 860, is in no way in conflict with the position taken by the court in this case. In that case the court merely intimated that no appeal would lie, under

section 7, in a case in which the injunction order was nominal, or in which the decree would be equally effectual without it. The appellees’ motion to dismiss the appeal is overruled. We now come to the consideration of the appeal. The appellant, under its assignment of errors, attacks the jurisdiction of the circuit court to make the decree appealed from, upon two grounds. By the second assignment of error the point is raised that the jurisdiction of the circuit court is dependent upon diversity of citizenship, and that, as the bill avers no such diverse citizenship, the court was without jurisdiction.

Without passing upon the question whether the federal courts have exclusive jurisdiction in this class of cases, we are satisfied that by the act of March 3, 1887, as amended by the act of August 13, 1888 (25 Stat. 436), which provides that “the provisions of this section” shall not af feet the jurisdiction of the circuit courts of the Uni led States in cases for “winding up the affairs” of any national bank, the circuit court has at least concurrent jurisdiction with the state court, in this class of cases.

Tlie first assignment of error is based upon the ground that, the supreme court of New Hampshire having already appointed a receiver in a suit which is still pending between the complainants and the defendant in this suit, this court is without jurisdiction'. We are of the opinion that the facts disclosed in the record do not state a case in which the circuit court should have declined to take jurisdiction by reason of the proceedings which were begun, in the state court. The rule which requires that the court which first obtains jurisdiction retains it to the end is based largely upon the doctrine of comity.

The original complainants in the state court discontinued the suit in that court. The defendant in that suit filed a motion to dismiss. The receiver there appointed never obtained possession of the res. Upon the facts as they appear of record, although no formal ot-der of dismissal was entered in the state court, we think the circuit court properly acquired jurisdiction. Whether a receiver ought to have been appointed is not before us upon this appeal, and we only decide that, assuming the appointment of a received to have been properly made, the order for an injunction should bé affirmed. Construction Co. v.

Young, 8 C. C. A. 231, 59 Fed. 721. Decree of circuit court affirmed. ;