LEHMAN v. GRAHAM, 135 F. 39

SHELBY, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. This suit is brought by John A. Graham, a citizen of the state of Florida and a resident of the Southern District of Florida, against Francis Irsch, a citizen and resident of the state of New York, and D. Lehman, an alien, a citizen and resident of the Empire of Germany. One of the purposes of the bill is to remove “an apparent lien and cloud” upon lands owned by the complainant, and situated in the district where the suit is brought.

The complainant and one of the defendants being citizens of different states, and the other defendant being an alien, and the amount involved being sufficient, the case was within the jurisdiction of the court. Dick v. Foraker, 155 U. S. 404, 411, 15 Sup. Ct. 124, 39 L. Ed. 201, and statutes there cited.

Section 720 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 581], provides that the writ of injunction shall not be granted in any court of the United States to stay proceedings in any state court, except in cases where such injunction is authorized by a proceeding in bankruptcy. The literal application of this statute would have forbidden the issuance of the injunction in this case. But the statute does not, and could not, have literal application. It must be construed so as to harmonize with other statutes and with the Constitution.

Sections 716, 718, and 719 of the Revised Statutes of the United States [U. S. Comp. St. 1901, pp. 580, 581] authorize the United States courts and judges to issue the writ of injunction.

The Constitution confers on the federal courts jurisdiction in all cases in law and in equity arising under the Constitution, the laws of the United States, or between citizens of different states, and “between a state, or the citizens thereof, and foreign states, citizens .or subjects.” An injunction to restrain proceedings in a state court is frequently an incident to a case of which the statutory and constitutional jurisdiction of the United States courts is unquestioned.

If the federal court has jurisdiction of the case by reason of the citizenship or alienage of the parties, or otherwise, it can grant relief against a judgment of a state court obtained by fraud (or on other equitable grounds) in any case in which relief could be granted if the judgment were rendered by a-United States court; and in such case a preliminary injunction may be issued against the defendants to prevent the collection of the judgment by execution or otherwise. Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870; Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497; Terre Haute & I. R.

Co. v. Peoria & P. U. R. Co. (C. C.) 82 Fed. 943; National Surety Co. v. Bank, 120 Fed. 593, 56 C. C. A. 657, 61 L. R. A. 394. What has been said is sufficient to show that on the averments of the bill

section 720 of the Revised Statutes, as construed by the Supreme Court, does not deprive the Circuit Court of the power to issue an injunction in a case like this. It is also urged on our attention with great earnestness and the citation of many authorities that the jurisdiction invoked in this suit is ancillary and supplemental to the foreclosure suit of Francis Irsch against John A. Graham, and that, this- being true, the Circuit Court had jurisdiction, without regard to the citizenship of the parties; and that, having obtained jurisdiction of the parties and the subject-matter before the proceedings in the state court,

section 720 of the Revised Statutes of the United States has no application. We do not deem it necessary or advisable to enter on the discussion of that question. Many questions going to the merits of the case are raised by the assignment of errors and, the briefs. We are not disposed to consider and decide them at this stage of the litigation. This is an appeal from an order granting a temporary injunction. Formerly such an order was not reviewable, but was in the absolute discretion of the Circuit Court. The act of March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp.

St. 1901, p. 547], allows an appeal from such a decree, but the act has been uniformly construed that the granting of an injunction pending the suit is in the sound judicial discretion of the circuit court, and that its order will not be disturbed on appeal, unless it is violative of the rales of equity that have been established for the guidance of its discretion. Kerr v. New Orleans, 126 Fed. 920, 61 C. C. A. 450, and cases there cited. In actual practice the court is often required to pass upon an application for a temporary injunction without an opportunity to make a careful investigation of the case.

When the sworn bill presents grave questions of law that should be decided on argument and after careful consideration, and when it appears that injury to the moving party may be immediate and certain, and that no injury will be done the defendant by the order, or such injury that may be fully provided against by bond, it seems a reasonable and proper practice to grant the temporary injunction. City of Newton v. Levis, 79 Fed. 718, 25 C. C. A. 161. When the case comes up later on answer, plea, or demurrer the questions involved can be more carefully examined.

The Circuit Court should at least, when the case is not plain, have the power to preserve the present conditions until it can be examined. When this can be done without injury to the defendant, the discretion of the court should not be lightly interfered with. No harm can come from permitting the free exercise of this discretion, especially where no loss can come to the defendant from a short delay. If the defendant chooses, he can always move the court to require a bond to protect him. As the case now stands, there is no pleading except the bill.

Many questions have been argued before us that could be more properly raised by plea, answer, or demurrer.

If raised in that way in the lower court, and decided according to appellant’s contention, the complainant would have a right to amend the bill; but if we should examine these questions, or at least some of them, on this appeal, and sustain the appellant’s contention, there would be no opportunity to amend; and, besides, if we adopt the practice of considering every alleged defect of a bill on an appeal like this, this court would be deciding various questions before they were presented to and passed upon by the Circuit Court. We must adhere to our previous decisions on this subject. Kerr v.

New Orleans, 126 Fed. 920, 61 C. C. A. 450; Massie v. Buck, 128 Fed. 27, 62 C. C. A. 535; Railroad Commission v. Rosenbaum Grain Co. (C. C. A.) 130 Fed. 110. The decree of the Circuit Court is affirmed.