McDOWELL et al. v. McCORMICK, 121 F. 61

SEAMAN, District Judge (after stating the facts as above). The general finding for the defendant is conclusive upon all issues of fact raised by the pleadings, and the evidence-is not reviewable to ascertain whether it supports the finding. Error in the admission or rejection of testimony is alone subject to review. Martinton v. Fairbanks, 112 U. S. 670, 673, 5 Sup. Ct. 321, 28 L. Ed. 862, and cases cited, 10 Rose, Notes U. S. Reports, 936; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 127, 22 Sup. Ct. 55, 46 L. Ed. 113; Distilling & Cattle Feeding Co. v. Gottschalk Co., 24 U. S. App. 638, 639, 13 C. C.

A. 618, 66 Fed. 609. The plaintiffs in error recognized this rule in the assignment of errors, but not in the questions raised upon the argument. Thus the primary contention for reversal assumes that the pleadings raise no issue upon the possession of the property by the plaintiffs when it was taken by the defendant under the writ of replevin; and, so assuming that the possession of the plaintiffs was unquestioned, the rule is invoked which authorizes recovery on the strength of possession alone against a trespasser “who disturbs it without right in himself.” Cooley on Torts, 436.

Were this assumption well founded, the objections to evidence of title in the replevin plaintiff, on which error is assigned, would doubtless present the question whether the defendant was a mere trespasser, within the rule stated, in so taking the property specified in the writ from the custody of a stranger to the suit — a question on which the decisions are not entirely harmonious, the solution depending in a measure upon the various provisions for the writ. Vide Billings v. Thomas, 114 Mass. 570, 574; Bullis v. Montgomery, 50 N. Y. 352, 356; Sexton v. McDowd, 38 Mich. 148, 150, 152; State v.

Jennings, 14 Ohio St. 73, 78. The contention is not tenable, however, in the case at bar, for the reason that the answer not only denies the allege'd possession by the plaintiffs, but states affirmatively that the defendants in the writ were in possession of the property when it was seized, and were engaged in its removal for the purpose of placing it beyond the reach of the writ of replevin, and that the plaintiff herein was acting only in collusion with them, under a pretended sale, without bona fide possession, actual or constructive.

While the findings foreclose any question of actual possession, it is sufficient, under all the authorities, that any participation or custody on the part of the plaintiffs was merely colorable, and not bona fide; and both findings and bill of exceptions are conclusive thereupon.

The question remains whether the record of* the proceedings in the circuit court of Ea Porte county, wherein Nichols was appointed receiver of the alleged insolvent corporation, is admissible in evidence to prove title to- the property involved, as against title asserted under the receiver appointed by the La Porte superior court — a court having general jurisdiction co-ordinate with such circuit court. The action in each case was against the Allen Manufacturing Company, alleged to be an insolvent corporation, and involved the same subject-matter.

The .relief sought was the appointment of a receiver and administration of the property of the defendant corporation — 4 proceeding in the nature of a creditors’ bill, expressly authorized by statute in Indiana, and having effect to hold the property “in custodia legis, whether the court had actually seized it or not.” Wild v. Noblesville Building Loan Fund & Savings Ass’n, 53 N. E. 944, 945, 153 Ind. 5.

In the first-mentioned suit in the circuit court, the complaint of the Hartford Rubber Works Company, a creditor, was filed October n, 1897; and the court entered an order the same day for tfie hearing on October 15, 1897, of an application for a restraining order against the defendant, and restraining disposition of property meantime, and for notice thereof to be served on the defendant. Both summons and notice were personally served on the defendant October 12th.

On October 15th the restraining order was continued in force — the defendant appearing to object to such order — and at the same time, in the same order, the court appointed one Nichols receiver of the corporation, the receiver promptly qualifying. The action of the La Porte superior court was instituted October 13, 1897, in the name of the Union Drop Forge Company, another creditor, by the filing of a complaint and service of a summons. On the same day the defendant corporation appeared before that court, and one Schwager was thereupon appointed receiver.

Forthwith the corporation surrendered to this appointee possession of its property, which consisted of the manufacturing plant and material in the State Prison ; and Schwager, aided by other persons, excluded the receiver of the circuit court, when appointed, October 15th, from possession of or access to the property.

Upon the facts thus appearing, the authorities which control the present controversy uniformly establish the doctrine that the proceedings so commenced in the circuit court of La Porte county gave to that court complete and exclusive jurisdiction of the subject-matter —the res in controversy — with unquestionable right of possession through its receiver. These citations for the proposition are sufficient and conclusive: Peck v. Jenness, 7 How. 612, 624, 12 L. Ed. 841, and subsequent cases noted in 4 Rose Notes U. S. Reports, 725; Farmers’ Loan & Trust Company v. Lake Street Elevated R. Co., 177 U.

S. 51, 61, 20 Sup. Ct. 564, 44 L. Ed. 667; Appleton Waterworks Co. v. Central Trust Co., 35 C. C. A. 302, 93 Fed. 286, 288; Taylor v. City of Ft. Wayne, 47 Ind. 274, 282; Wild v. Noblesville, etc., Ass’n, supra. The nature of the action established the custodia legis in the court wherein the proceedings were first instituted; and this irrespective of any actual seizure of the property, or of violation of the restraining order entered in the primary suit.

Jurisdiction of the res became paramount in the circuit court through prior service of its process, if not from the filing of the complaint and entry of the preliminary restraining order. As said in Taylor v. City of Ft.

Wayne, supra: “It is a clear principle of jurisprudence that, when there exist two tribunals possessing concurrent and complete jurisdiction of-the subject-matter, the jurisdiction becomes exclusive in the one before which proceedings are first Instituted.” Other courts having no supervisory powers are thereby excluded from exercising jurisdiction until the duty of the prior court “is fully performed and the jurisdiction involved is exhausted.” Harkrader v. Wadley, 172 U. S. 148, 164, 19 Sup. Ct. 119, 125, 43 L. Ed. 399.

The rule of decision in Indiana which governs the state courts conforms to that of the federal jurisdiction. It is adopted as a “principle of jurisprudence” whereby “the jurisdiction becomes exclusive in the one before which proceedings are first instituted.” Taylor v. City of Ft. Wayne, supra. So defined, it is not a mere rule of comity, but one of necessity, which “leaves nothing to discretion or mere convenience.” Covell v. Heyman, 111 U. S. 176, 182, 4 Sup. Ct. 355, 28 L. Ed. 390.

When the complaint on behalf of another creditor was filed in the La Porte superior court, and summons was served and appearance entered, that court was without present jurisdiction of the subject-matter, “for the property could not be subject to two jurisdictions at the same time.” Id., 111 U. S. 182, 4 Sup. Ct. 358, 28 L. Ed. 390. Possession of the property obtained by its receiver was, of course, nugatory, as were any orders for the sale thereof. The question of jurisdiction was clearly open to inquiry in the litigation of title thereunder (Cooper v. Newell, 173 U. S. 555, 567, 19 Sup. Ct. 506, 43 L.

Ed. 808), and the effect of the statement in the bill of exceptions that “the evidence tended to show that the suit brought in said superior court was instituted in bad faith” requires no consideration. The interference with the custodia legis of the circuit court violated these canons of the law, and conferred neither possession nor title which can be recognized or enforced in the case at bar. We find no error in the rulings of the court below, and the judgment is affirmed.