LEATHE et al. v. THOMAS et al., 97 F. 136

After stating the facts as above, the opinion of the court was delivered by BAKER, District Judge. The restraining order, the dissolution of which is complained of, enjoined the sheriff from further proceeding with the collection of an execution lawfully issued to him in pursuance of a decree of the circuit court of St. Clair county, in the state of Illinois. It is suggested by counsel for appellees that under the authority of Haines v. Carpenter, 91 U. S. 251, the bill is multifarious and bad on demurrer, and that for this reason the restraining order ought to have been dissolved.

We do not consider it necessary to pass upon the question suggested. The order dissolved falls directly within the prohibition of

section 720, Rev. St. 1878. This

section provides: “The writ of injunction shall not be granted by any court of the United States to stay any proceeding in any court of a state except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” It is contended that the restraining order does not stay any proceeding in the state court, and that its only purpose is to control the action of a ministerial officer.

It is conceded that no court of the United States can lawfully issue any order of injunction to arrest the progress of a suit pending in any court of a state, but it is claimed that this is not a suit pending in the court of a state, inasmuch as the matter has passed into judgment, and that the issuance of the execution by the clerk, and the act of the sheriff in executing it, are to be performed under the mandate of the statute, and form no part of the proceedings of the court. This contention cannot be maintained.

The prohibition of the statute does not.extend to proceedings in a court of the state up to and including final judgment only, but to the entire proceedings from the commencement of the suit until the execution issued on the judgment or decree is satisfied. The supreme court, in Wayman v. Southard, 10 Wheat. 1, say: “The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until the judgment shall be satisfied. Many questions arise on the procesé subsequent to the judgment in which jurisdiction is to be exercised.

It is therefore no unreasonable extension of the words of the act to suppose an execution necessary for the exercise of jurisdiction.

Were it even true that jurisdiction could technically he said to terminate with the judgment, an execution would he a writ necessary for the perfection of that which was previously done, and would consequently he necessary to the beneficial exercise of jurisdiction.” Jurisdiction is the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal that, if the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree, and that jurisdiction continues until that judgment or decree is satisfied.

A writ will lie by the party aggrieved to correct errors in the proceedings, judgment, or execution in a suit in a court of record. The statute of the state authorizing the issuance and execution of final process is not in denial, but is rather in affirmance, of the existence of the jurisdiction of the court until the judgment or decree is satisfied. Diggs v. Wolcott, 4 Cranch, 179; Peck v. Jenness, 7 How. 612, 625; Watson v. Jones, 13 Wall. 679, 719; Haines v. Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 U. S. 340; Sargent v. Helton, 115 U. S. 348, 6 Sup. Ct. 78; In re Sawyer, 124 U. S. 200, 220, 8 Sup.

Ct. 482; U. S. v. Collins, 4 Blatchf. 142, Fed. Cas. No. 14,834; Wayman v. Southard, supra; Bank v. Halstead, 10 Wheat. 51; Riggs v. Johnson Co., 6 Wall. 166; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019; Trust Co. v. Grantham, 27 C. C. A. 570, 83 Fed. 540, and 53 U. S. App. 647. The

section above cited is not the only obstacle which prevents the sustaining of the order of injunction. The principle of comity which obtains between courts of concurrent jurisdiction forms a recognized part of their duty. It requires that a subject-matter drawn and remaining within the cognizance of a court of general jurisdiction shall not be drawn into controversy or litigated in another court of concurrent jurisdiction.

This principle prevails in all courts of concurrent jurisdiction deriving their powers from a common source. “A departure from ibis rule would lead to the utmost confusion and to endless strife between courts deriving their powers from the same source; but how much, more disastrous would be the consequence of such a course in the conflict of jurisdiction between courts whose powers are derived from entirely different sources?” Buck v. Colbath, 3 Wall. 334, 341.

It is firmly established that the application of this principle forbids the courts of the states from interfering by injunction or otherwise with the mesne or final process of the courts of the United States; and the same principle in like manner forbids the courts of the United States from interfering by injunction or otherwise with the mesne or final process of the courts of the states. The court, speaking through the chief justice, in Moran v. Sturges, 154 U. S. 268, 14 Sup. Ct. 1022, quotes the following from Mr. Justice Clifford, who spoke for the court in Riggs v.

Johnson Co., 6 Wall. 195: “State courts are exempt from all interference by the federal tribunals, but they are destitute of all power to restrain either the process or proceedings of the national courts. Circuit courts and state courts act separably and independently of each other, and in their respective spheres of action the process issued by the one is as far beyond the reach of the other as if the line of division between them was traced by landmarks and monuments visible to the eye.” For these reasons, without reference to the prohibition of

section 720, we should be constrained to affirm the order of dissolution. It is, however, insisted if the court should be of opinion that the restraining order cannot be- sustained as granted, that this court should modify the order so as to permit the sheriff to collect the judgment, and then restrain him from paying it over to the execution plaintiff. It is enough to say that no such order was asked for either in the prayer for relief or in the application for a temporary injunction, nor was the right to such an order considered in the court below.

This court can grant injunctions in aid of its jurisdiction, but the modification asked is tantamount to the granting of an injunction de novo in the suit pending in the court below, and is in no wise in aid of the jurisdiction of this court. Whether the court below should grant a temporary restraining order, enjoining the sheriff from paying over the money, when collected, to the execution plaintiff, and also enjoining the latter from receiving it, are questions not before us, and we express no opinion upon them. The order appealed from is affirmed at the costs of the appellants.