MACK v. WINSLOW, 59 F. 316

RICKS, District Judge, after stating the facts as above, delivered the opinion of the court. Upon the foregoing statement of facts, the only question of law presented for our consideration is as to the effect or operation of the proceedings by attachment in the superior court of Cincinnati. Those proceedings were instituted after the commencement of the suit against Block & Sons in the circuit court of the United States for the district of Kentucky.

The jurisdiction of the latter court, and the right of the plaintiff to prosecute that suit in that court, having attached, that right could not be arrested or taken away by proceedings in another court. But it is contended that it was not the purpose of the plaintiff in the attachment suit begun in Ohio to thereby arrest the suit then pending in Kentucky, but only to gain thereby a prior lien and claim by garnishee proceedings upon the fund due from Block & Sons to Darling.

It is further contended, inasmuch as the notice of garnishee from the Ohio court was actually served upon Block & Sons some nine days before the judgment in the circuit court of the United States in Kentucky was rendered, that therefore the lien of the plaintiff in the Ohio proceedings upon the credits and fund in the hands of the garnishee became prior and superior to any and every other lien. But such contention is not well founded.

It is the prior pendency of a suit involving the same subject-matter in a court of competent jurisdiction that determines the tribunal to which the defendant lias a right to submit, the conflicting claims of pursuing creditors. The defendant debtor in such cases is equally interested .in having the jurisdiction of the court correctly determined.

If the exact hour and day upon which interlocutory proceedings took place in rival courts were to determine the priority of liens and claims to the credits in the hands of such defendant debtors, frequent collisions in the jurisdiction of courts would occur, and prove extremely embarrassing.

So the courts have wisely determined that the prior pendency of a suit Involving- the same subject-matter is the test of priority in jurisdiction; and when a defendant is lawfully served wi tli process, or otherwise legally made a defendant in such court, he is rightfully first amenable to the orders and judgments of that court, and protected by submitting himself thereto. This doctrine is fully and clearly announced by the supreme court of the United States in the case of Wallace v. McConnell, 12 Pet. 136. and, though other authorities are cited by counsel, this one is sufficient and controlling.

The defendants in the suit in the United States circuit court in the case above cited were not, therefore, amenable to the garnishee process under the attachment proceedings in the Ohio court. The circuit court, upon the pleadings and evidence, found that the several assignments of partial interests in the judgment made by the plaintiff were valid, and that notice thereof had been duly given and filed in that court. Thereupon the order of distribution of the funds paid in by the judgment debtors was made by the court.

Counsel, in their briefs, do not contend that there was any error in the order of the court finding the above assignments regular and valid. We understand the contention to relate solely to the priority of the lien npon the fund which the plaintiff, Mack, is claimed to have acquired by the attachment proceedings in the Ohio court, and this has been fully considered. It is not, therefore, necessary to determine the question whether or not the superior court of Cincinnati acquired jurisdiction of A. W.

Darling- by virtue of the attachment proceedings under which Dlock & Sons were garnished as having credits due to Darling, and by the subsequent service by publication. We hold that the jurisdiction of the United States court in Kentucky over the defendants attached long prior to the institution of tiu- suit in Ohio, and that thereby the defendant was first bound to fully answer the orders and judgments of that court, and, having-done so, is protected thereby. The judgment of the circuit court is affirmed.