CENTRAL TRUST CO. OF NEW YORK v. GRANTHAM et al., 83 F. 540

SHOWALTER, Circuí!. Judge (after stating the facts as above). The order of dismissal was made pursuant to the rule expressed in

section 720 of the Revised Statutes of the United States, and, as stated in the brief for appellant, the case of Dillon v. Railway Co., 43 Fed. 109-114, was deemed in the circuit court to be specially in point.

Section 720 reads: “The writ of injunction shall not he granted by any court of the United States to stay proceedings in any court of a state excex>t in cases where such injunction may be authorized .by any law relating to proceedings in bankruptcy.” In practice this

section has been treated, apparently, as being a statutory sanction for that rule whereby a state court, without any statutory obligation, declines to interfere by injunction with proceedings in a federal court. The decisions on the subject are collected, and to some degree discussed, in a footnote to the case of Association v. Hurst, 7 C. C. A. 598, 59 Fed. 1. Hemsley v. Myers, 45 Fed. 289, may be specially referred to. So far as concerns the force of

section 720, the question here, therefore, would seem to be one of priority in time between the circuit court of the United States and the circuit court of Montgomery county, in the state of Indiana. It is contended that the bill filed by appellant is really dependent on, or supplemental to, the foreclosure proceeding of 1885; in other words, that the priority in time is with the circuit court of the United States. In Buck v. Colbath, 3 Wall. 334, Buck was the United States marshal for the district of Minnesota. An attachment suit was commenced in the circuit court of the United States for that district.

In executing the wait of attachment Buck seized certain chattels as being the property of the defendants in the attachment suit. The case went to a final judgment in favor of the attaching creditor. This judgment involved the order that the property so seized by the marshal, or the interest of the defendants therein, be sold, and the proceeds paid to the plaintiff in satisfaction of his debt. Pursuant to this judgment, the sale was So made and the proceeds so applied. Meanwhile, Colbath, a stranger to the attachment proceeding, sued Buck in an action of trespass in one of the state courts óf Minnesota.

He proved that the goods so seized belonged to himself, and that the possessory right was in him, and not in the defendants in the attachment suit. Judgment went in his favor. The record was thereupon taken to the supreme court of Minnesota, and that court affirmed the judgment. The cause then went by writ of error to the supreme court of the United States, and there the judgment of the supreme court of Minnesota was affirmed. It will be seen that Oolbath, instead of suing in trespass, might have made his application to the circuit court of the United States pending the attachment proceedings.

In that event, the question touching his ownership would have been before that court; but as the case went, notwithstanding the order of sale, the judgment of the national court did not involve any adjudication or finding upon the matter of ownership in Colbath. In the case at bar the foreclosure decree did not involve any question as between Messick and the mortgagees, Kountz & Crosby, or between Messick and the Anderson, Lebanon & St. Louis Railroad Company. The railroad company, it is said, had entered on Messick’s land, and marked off the way or route for the proposed road, and had graded, the same.

In this condition of the mortgaged property the foreclosure decree was rendered and sale thereunder made. The purchaser, the Midland Bailway Company, took whatever right, as against Messick, was then vested in the mortgagor. But the decree did not necessarily involve the finding by the court that any right had so vested as against Messick. There was in this decree no basis for any writ: of assistance against Messick in case he had seen fit to interfere with the purchaser under the foreclosure decree with respect to that portion of Iris land which liad been marked off and graded as already mentioned.

It is even questionable whether, by any necessary implication, it here appears that, at the time when the purchaser under the foreclosure succeeded to the railroad property, Messick could not have enjoined any further work on his land until he had received such compensation as he would have besen entitled to under the law of eminent domain. If in Buck v. Colbath the marshal liad, after the final judgment and sale in the attachment suit, filed his bill in the circuit court of the United States to enjoin the proceeding in the state court, he would have failed.

The theory of such a bill by him would have been that the circuit court of the United ¡átales, in ordering the property which had been seized under the attachment writ to he sold, did, in effect, adjudge that the same belonged to the defendants in that suit, and lliat it was necessary for the court to entertain the bill in order to effectuate and enforce its own judgment; or that the trespass suit: could not lie entertained in the state court, since the defendant therein, in committing the alleged trespass, had acted under color of process from the national court.

But this view of that case is discredited in the supreme court opinion. So, here, Messick was not a party, or in ■privity with any party, to the decree of foreclosure. There is nothing in that decree which necessarily concludes him. We are unable to see that the foreclosure proceeding oí Í885 is available to appellant as vesting the circuit court of the United States with a jurisdiction prior in time to that of the state court, or as being, in effect, an adjudication on the question of right in the owner of the Messick land to eject the railroad company therefrom.

It is urged that since the railroad is now in operation across the land in controversy, and since it is a public highway for interstate commerce, and .is also a national mail route, the case should be litigated in the circuit court of the United States. If the United States, or the attorney general, wore party complainant, this point might well be considered. But: the appellant here is a mere mortgagee, it is a creditor with a mortgage, striving in its own right as creditor to prevent waste of, or injury to, the mortgaged property. It is not the custodian of public rights.

It does not, nor is it authorized to, sue on behalf of the public. This is not an information and bill by the attorney general and this appellant. The point: that appellant was not a party to, and is hence not bound by, the judgment in the state court, is doubtless well taken. But the proposed ejectment of the railway company from the land in question is a matter within the jurisdiction of the stale court. That court has control over its own process. The circuit court of the United States cannot give the relief here prayed without interfering with the proceedings of the circuit court of Montgomery county, Ind.

The national court ought not to so interfere, even if there were no such express statutory provision as

section 720. The order of dismissal is affirmed.