LOUISVILLE TRUST CO. v. KNOTT et al., 130 F. 820

SEVERENS, Circuit Judge, having stated the case as above, delivered the opinion of the court. The ground on which the Circuit Court refused the petition of the receiver of the state court for the surrender to him of the assets of the Evening Post Company was that the state court had not the possession or control of the property of the company at the time when the receiver of the Circuit Court of the United States took possession thereof under the order of the latter court.

The learned judge conceded what has so often been decided — that, the suit in the state court having been first commenced, if that court had taken actual possession of the property, it could not lawfully have been dispossessed by the order of the federal court. It is unnecessary to fortify the ground conceded. It has long since ceased to be debatable. The question is whether, upon the facts as they were presented to the court below, it was essential that the state coúrt should have actually exercised its dominion over the property, in order to render the seizure thereof by the federal court unlawful.

And we think it was not essential. The reasons which support the doctrine of the conceded rule are not all the same as those which apply to the question here, but those here applicable are equally potent and persuasive to establish a similar rule for judicial action, when the power of the court over the assets has not yet been exercised, but the right to do so is essential to the objects of the suit.

The corporate life of the Evening Post Company had ended for all purposes except for winding up its affairs, and it had become subject to the statutory regulations prescribed for closing up its business and disposing of its assets. A majority of its stockholders were pursuing a course of conduct with reference to the assets which, as the minority contended, was intended to further the private interests of those in the majority, was not authorized by the statute, and was in derogation of the rights of the minority.

The latter filed their bill in the state court to prevent this, and to obtain a proper settlement of the company’s affairs, and the court entertained it. The contention of the appellees that the bill presented ‘ only a controversy over the question of right to inspect the books of the company is not tenable. That was a mere incident. The averments of the bill were ample to present a case for the settlement of the affairs of the company and the disposition of its assets, and this was the general relief prayed.

The company and the majority stockholders were made defendants, and they appeared and submitted to the jurisdiction of the state court. While a motion was pending in that case, and before a judgment thereon was rendered, a collusive judgment in the federal court was accorded to a creditor against the company by the majority who were in control of its affairs. A creditors’ bill was immediately filed, the object of which was much the same as that of the suit in the state court, a receiver was appointed, and the property seized into his possession.

When the state court came to decide the pending motion, which was for the production of the books and records, it found itself deprived of all power to make any effective order or decree in the case. The subject-matter of the suit, the res which its jurisdiction had been invoked to administer, and which it had undertaken to administer, had been removed by another court of co-ordinate jurisdiction and taken under its own control for administration in a suit brought subsequently for that purpose.

Any decree of the state court made for the purpose of effecting the objects of the suit would be mere brutum fulmén, to use the language of Mr. Justice Grier in Orton v. Smith, infra, in describing such a situation. It is clear that such a result is not only contrary to the purpose and spirit of any orderly system of jurisprudence, but is one extremely likely to provoke a conflict, tending to discord and mischief.

To avoid such conflict, most liable to arise between the federal and state courts, it has come to be settled, as we think, that, wherever a state or federal court has lawfully taken jurisdiction of a case for the purpose of subjecting assets within its territory to the charge or disposition which the law applicable to the case requires, such assets are thereby brought in custodia legis, subject to the power and control of the court, and that no other court of cb-ordinate jurisdiction can, in a suit commenced while the assets are in that situation, lawfully deprive the court, which has already acquired the right of control, of the possession of them.

This because the possession of the res is indispensable to the exercise of its jurisdiction by the court to the end that it may be impressed by its decree. It does not seem to us important that a receiver had not actually been appointed. An appointment of a receiver would rest upon considerations of convenience, and might be made at any time during the progress of the case if occasion should arise. The conversion of the assets might be made without the employment of a receiver at all. Besides, the appointment goes upon the ground that the court has acquired control of the assets.. He is a mere agent of the court.

The possession is that of the court, and not his own. It is quite true that in many cases the rule has been stated in terms no broader than to include an actual possession by the court consequent upon a seizure. But it is seen that generally in such cases the exigency did not make it necessary to go beyond that limit. When the question we are now considering has been actually presented, the decisions have been quite uniformly in accord with the rule which we have indicated as the correct one. Wallace v. McConnell, 13 Pet. 136, 10 L. Ed. 95; Orton v. Smith, 18 How. 263, 15 L. Ed. 393; Chittenden v.

Brewster, 2 Wall. 191, 17 L. Ed. 839; Riggs v. Johnson County, 6 Wall. 166, 18 L. Ed. 768; Farmers’ Loan, etc., Co. v. Lake St. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667, where Mr.

Justice Shiras, expressing the opinion of the court upon this subject, said: “Nor is this rule restricted, in its application 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.

The rule has been declared to be of especial importance in its application to federal and state courts.” This subject has been much discussed in two cases in this circuit, which are canvassed in the briefs of counsel here (Powers v. Blue Grass Building & Loan Association [C. C.] 86 Fed. 705, and Phelps v. Mutual Reserve Fund Life Association, 112 Fed. 453, 50 C. C. A. 339, 61 L. R. A. 717), in both of which cases Judge Eurton delivered the opinion, in the first at the circuit, and in the latter for this court.

The facts in neither of these cases presented the very question we now have before us, for in the Powers Case the state court was acting as an adviser of an assignee, and was not proceeding for the purpose of affording relief to a plaintiff. The assignee was not an officer of the court, and the possession of the res by the court was not necessary to the object of the application. It was held there was no impediment to the proceeding which the Circuit Court of the United States proposed to take with reference to the assigned property.

In the Phelps Case a receiver had actually been appointed by the state court in proceedings supplementary to the judgment, and for the satisfaction thereof. The order appointing the receiver impounded the debts due to the association, and directed him to collect them.

Upon a bill in equity filed in the United States Circuit Court, denying the jurisdiction of the state court to render the judgment mentioned or to appoint the receiver, the federal court granted an injunction restraining the plaintiff and the receiver in the state court from executing the order of the latter for the impounding and collection of the assets of the association. Finding, as we did, that the state court did not lack jurisdiction, we held that this action of the federal court was an unlawful interference with the right and power of the state court.

The difference between the Phelps Case and this is that in the former the state court had taken action toward the appropriation of the assets to the object of the suit by seizure, while in the present case that step had not yet been taken. In both of the cited cases the doctrine is announced in terms broad enough to cover a case where actual possession may not have been taken by the court which first acquired jurisdiction. The following cases in other Circuit Courts of Appeals are directly in point: Merritt v. American Steel Barge Co., 79 Fed. 228, 24 C. C. A. 530, 49 U. S. App. 85; Adams v.

Mercantile Trust Co., 66 Fed. 617, 15 C. C. A. 1, 30 U. S. App. 204; Zimmerman v. So Relle, 80 Fed. 417, 25 C. C. A. 518; Memphis Sav. Bank v. Houchens, 115 Fed. 110, 52 C. C. A. 176; Baltimore & O. R. Co. v. Wabash R. Co., 119 Fed. 678, 57 C. C. A. 322, certiorari denied 187 U. S. 650, 23 Sup. Ct. 848, 47 L. Ed. 349. And see 2 Bates, Fed. Procedure, § 613.

In harmony with it, and designed to give it full operation, is another rule, which is that whenever in such case a third party claims some interest in the property which has been subjected to the control of the court, he may intervene in the pending case, and become a party thereto, for the protection of his interest, as explained in Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145; Gumbel v. Pitken, 124 U. S. 143, 5 Sup. Ct. 616, 28 L.

Ed. 1128, and numerous other cases of like character decided by the Supreme Court, or, if that interest be such that it survives the exercise of the jurisdiction in the pending case, he may stand aloof and pursue his remedies after the property has been discharged by the court which has had it under its control. We are not now concerned with suits in personam, in regard to which other reasons may prevail to a different result. The case of Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981, though at first blush it might seem to the contrary, is not in conflict with the current of modern decisions.

In that case the claim of the plaintiff was of a maritime nature, of which the federal court alone had jurisdiction. The state court did not have power to deal with it. The two courts were not of concurrent jurisdiction. The plaintiff could not by intervention confer upon the state court a jurisdiction which it did not by law possess. The authority of the federal court was paramount and exclusive. It does not matter that the plaintiff in the present case was not a party to the case in the state court, or that by reason of his citizenship he had a constitutional right to bring his suit in the federal court.

Perhaps he might have maintained it there for the purpose of establishing his claim. He .could then go into the state court which had the control of the assets of his debtor, and secure the recognition of his right thus established. Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906, 37 L. Ed. 867. The presumption must be that such recognition would be given by the state court, and his lawful rights duly accorded to him.

It is not even charged in his bill that any one is attempting to defraud the plaintiff, or is proceeding without right, or to the prejudice of any right of the plaintiff; and, on the whole record, we see no other hindrance to the plaintiff by the suit in the state court than such as is ordinarily incident to legal proceedings. The state court took the proper course when it directed its receiver to apply to the court below for the surrender to it of the assets of the company, and we think there was error in refusing the application when the facts were made known to the latter court.

The order appealed from must be reversed, with costs, and the cause remanded, with a direction to grant the petition of the receiver of the circuit court for Jefferson county.