BALTIMORE & O. R. CO. et al. v. WABASH R. CO., 119 F. 678

JENKINS, Circuit Judge (after stating the facts). It is settled that, when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted. Harkrader v. Wadley, 172 U. S. 148, 19 Sup. Ct. 119, 43 L. Ed. 399; Farmers’ Doan & Trust Co. v. Fake Street El. R. Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667.

We have followed this rule, declaring “that" the court which first obtains possession of the res or of the controversy, by priority in the service of its process, acquires exclusive jurisdiction for all the purposes of a complete adjudication.” 505,-000 Feet of Lumber, 24 U. S. App. 509, 517, 12 C. C. A. 628, 65 Fed. 236. The rule is not only one of comity, to prevent unseemly conflicts between courts whose jurisdiction embraces the same subject and persons, but between state courts and those of the United States it is something more. “It is a principle of right and law, and therefore of necessity.

It leaves nothing to discretion or mere convenience.” Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390. The rule is not limited to cases where property has actually been seized under judicial process before a second suit is instituted in another court, but it applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in all suits of a like nature. Farmers’ Loan & Trust Co. v. Lake Street El. R. Co., supra; Merritt v. Steel Barge Co., 24 C. C. A. 530, 79 Fed. 228, 49 U. S. App. 85.

The rule -is limited to actions which deal either actually or po-„ tentially with specific property or objects. Where a suit is strictly in personam, in which nothing more than a personal judgment is sought, there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined; and this because it neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with law.

Stanton v. Embrey, 93 U. S. 548, 23 L. Ed. 983; 8 Rose, Notes, 1010. The doctrine is lucidly stated by Judge Thayer in Merritt v. Steel Barge Co., supra. Subject to the conditions stated, where jurisdiction, concurrent with the state court, exists in the federal court, parties have the right, the necessary diversity of citizenship existing, to invoke that concurrent jurisdiction, and it may not be denied them.

We have been thus careful to state the limitations which hedge about the federal jurisdiction in respect to subjects which are also within the jurisdiction of state courts because it is all important that conflicts of jurisdiction between courts of different sovereignties, acting within the same plane, should be avoided. Applying these principles to the case in hand, it remains to be considered whether the present case is one in which federal jurisdiction may properly be invoked.

The suit is one to restrain continuing trespasses by the Baltimore & Ohio Railroad Company, whereby the Wabash Company is prevented from the assertion of the right decreed by the state court. In its broadest aspect, it is a suit to enforce the decree of the state court, not to limit or restrain it. A creditors’ bill may undoubtedly be enforced in a federal court, based upon the judgment of a state court, and a creditors’ bill is merely an equitable execution. So, also, an action of ejectment will lie in the federal court, the necessary diversity of citizenship existing, upon a title derived through a state court.

It would be no answer to such an action to say that the state court could have enforced its decree and given the party possession. In the present case the decree of the state court adjudged an easement in the locus in quo to the Wabash Company. Its rights were determined by that decree. This proceeding is not one to acquire an easement, or to perpetuate or condemn an easement, but is a bill in the nature of an action to stay trespass committed upon the easement acquired by the Wabash Company under^ the decree in question.

If that decree were unappealed and unassailed, there could, we think, be no question that a federal court—its jurisdiction otherwise being conceded—could entertain a bill to enforce the decree, and to deliver possession pursuant to the decree, and to enjoin interference and obstruction, because such a proceeding is in aid of, and not in opposition to, the adjudication of a state court.

It is said, however, that the decree of the state court was, prior to the filing of this bill, removed by appeal into an appellate court, and is there pending; but the appeal taken under the statute of Indiana does not operate as a supersedeas, nor in any way delay or prevent the enforcement of that decree pending the appeal. The Wabash Company, notwithstanding the appeal, could in a state court have enforced the decree. Is there any reason why it might not resort to the federal court for the same purpose, and will the action of the federal court be an interference leading to a conflict of jurisdiction?

It is alleged that such might result if the federal court should decree for the Wabash Company, place it in possession, and subsequently the appellate court of Indiana should reverse the decree of the De Kalb circuit court, which adjudged the decree, and that then the Wabash Company could claim possession under the decree of the federal court, and upon decree of ouster by the state court an unfortunate conflict of jurisdiction might be projected. Such supposed possible conflict is fanciful, not real.

It must be assumed that the federal court will proceed according to law, and will conform its orders and decrees in such way that no possible conflict can arise. The order here appealed from is a temporary restraining and mandatory order of injunction to prevent trespass upon the decreed rights of the Wabash Company, and pending the suit the court below is fully competent to set aside or to modify the order as the emergencies of the case may r.equire; and it undoubtedly would so act so soon as it was advised of a reversal of the decree of the De Kalb circuit court.

So, also, if this suit should go to final decree before action of the state appellate court, the proper decree to enter, and which unquestionably the court below would enter, would not be an absolute decree, but would restrain the commission of the trespasses, and the interference with possession by the Wabash Company, so long as the decree of the De Kalb circuit court should remain in full force and virtue. The decree so framed would, by force of its own terms, lose efficacy upon reversal of the decree of the De Kalb circuit court, and no conflict of jurisdiction could arise.

We are anxious and should strive to avoid all possible and unnecessary conflict between federal and state courts, but we are not at liberty to deny jurisdiction when it is rightly invoked. The application of the Baltimore & Ohio & Chicago Railroad Company to be made a party to this suit was properly denied.' The road was in the possession and operation of the Baltimore & Ohio Railroad Company, and the latter company only had committed the trespass.

The Baltimore & Ohio & Chicago Railroad Company was a corporation of the state of Indiana, and sought to be made a party to the suit manifestly and only for the purpose of ousting the federal jurisdiction. It was not an indispensable party to the suit, since, so far as the record shows, it had no

part in the commission of the trespasses charged. It cannot be permitted to obtrude itself into a litigation to defeat the jurisdiction of the court. The decree or order appealed from is affirmed.