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was held that the doctrine did not prevent a suit to foreclose a mortgage, or to establish a lien, upon property in a State court's custody; 18 provided that no sale was ordered until the proceedings in the State court were terminated; 19 and that neither the sheriff, nor, without the permission of the court, a State receiver was a necessary party to the suit; 20 that a Federal court may foreclose a mortgage upon property, held by a receiver appointed by a State court, in a suit to which the mortgagee was not a party, and can then determine the claim of the holders of receiver's certificates issued under the order of the State court to a preference over the mortgage ; 21 that a State court may foreclose an attorney's lien upon a cause of action after the removal of the case to the Federal court, subsequent to a settlement between the parties; 22 that a State court may entertain proceedings to condemn land, pending a suit in equity in a Federal court for an injunction against a trespass upon the same by the respondent in the condemnation proceedings, or, in the alternative, for the payment of its value; 23 or a suit to determine the ownership of land pending a proceeding in a Federal court to condemn the property for public purposes; 24 that a proceeding in a State court for a writ of assistance, under a foreclosure decree of sale, does not operate as a bar to an action of ejectment

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18 Wheelwright v. St. Louis, N. O. & O. C. & T. Co., 50 Fed. 709, 711; Gates v. Bucki, 53 Fed. 961, 968; Edwards v. Hill, C. C. A., 59 Fed. 723; Jenks v. Brewster, 96 Fed. 625, holding that where person, not a party to a suit in a Federal court, had subsequently to the institution of the same begun an action in the State court to foreclose his lien, to which the Federal plaintiff was one of the defendants, the decree of the State court bound the parties to the same and the purchaser of the property, pending the litigation under the decree of the Federal court; Metropolitan Trust Co. v. Lake Cities El. Ry. Co., 100 Fed. 897. So held in 1918, Brown v. Crawford, 254 Fed. Fed. Prac. Vol. I-13

146. Contra, Cochran v. Pittsburg, S. & N. R. Co., 158 Fed. 549; Cohen v. Solomon, 66 Fed. 411; Hardin v. Union Tr. Co. of Philadelphia, Pa., C. C. A., 191 Fed. 152.

19 Wheelwright v. St. Louis, N. O. & O. C. & T. Co., 50 Fed. 709, 711. But see Erwin v. Lowry, 7 How. 172, 12 L. ed.

20 Porter v. Sabin, 149 U. S. 473, 37 L. ed. 815.

21 Metropolitan Trust Co. v. Lake Cities El. Ry. Co., 100 Fed. 897. Infra, § 314.

22 Oishei v. Pennsylvania R. R. Co., 101 App. Div. (N. Y.) 473. 23 Benjamon v. Brooklyn Union El. R. Co., 120 Fed. 428.

24 U. S. v. Eisenbeis, C. C. A., 112

Fed. 190.

between the same parties for the same property, brought in a Federal court by the applicant for the writ; 25 that the pendency in the State court, of an action of ejectment, does not prevent a suit in the Federal court, by the defendant against the plaintiff, to quiet the title to the same land; 26 nor an action in personam between the same parties involving the same issues, provided that the property is not seized therein.27

It has been held that the pendency of a suit in a Federal court to foreclose a lien upon timber on certain lands does not prevent an attachment upon the same timber in a subsequent action at law in the State court for a breach of another contract for the sale of part of the same; 28 that property seized and sold by an internal revenue collector, under the statutes of the United States, cannot be replevied from the purchasers by the former owner, under process from the State court, since the remedy for a wrongful seizure, given by the statute, is exclusive.29

Property in the possession of a statutory receiver, not appointed by the court, such as a receiver of a national bank appointed by a Comptroller of the Currency, is not considered to be in the court's custody,30

Property is deemed to be in the custody of the court from the time when a suit or action seeking to have it placed there has been begun; either by the levy of a writ in a proceeding in rem; 31 or in the nature of a suit in rem 32 or by the filing of

25 Lamar v. Spalding, C. C. A., 154 Fed. 27.

26 North Carolina Mining Co. v. Westfeldt, 151 Fed. 290. Where in an action of ejectment in a State court defendants filed a counterclaim alleging that they were in possession and praying a determination of conflicting claims in accordance with the State statutes (Revisal N. C. 1905, § 1589), it was held that complainant could not subsequently sue in equity in the Federal courts for similar relief. Westfeldt v. North Carolina Min. Co., C. C. A., 166 Fed. 706.

27 Rejall v. Greenhood, 60 Fed. 784; Merritt v. American S. B. Co.,

79 Fed. 228; Copeland v. Bruning, C. C. A., 127 Fed. 550. Infra, $57. Cf. Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630. But see infra, § 177.

28 Nelson v. Camp, C. C. A., 191 Fed. 712.

29 Allen v. Sheridan, 145 Fed. 963. 30 In re Chetwood, 165 U. S. 443, 41 L. ed. 782.

31 Taylor v. Carryl, 20 How. 583, 15 L. ed. 1028; Heidritter v. Elizabeth Oil-cloth Co., 112 U. S. 294, 28 L. ed. 729; U. S. v. Eisenbeis, C. C. A., 112 Fed. 190.

32 Sharp v. Bonham, 213 Fed. 660, (a suit between the representative of two religious societies to

a bill praying the appointment of a receiver; 33 or by the filing of a bill for the distribution of the assets of a corporation; 34 or, it has been held, by the issue of a restraining order upon the tendering of a bill for filing, upon notice to the defendants, although, because of the absence of some of them, leave to file was not granted until subsequent to the institution of a suit in the State court; 35 or by an adjudication in bankruptcy. 36

But it has been held that, except in the case of bankruptcy, this doctrine does not apply when the issues and the subject matter of the two suits are different and actual possession has not been taken before the institution of the second suit.37

It has been held that the issue of a writ of attachment by the Federal Court in an action in personam and its filing as a lien against the defendant's property does not prevent the State Court from appointing a receiver of the same property in a suit by a person nor in privity with the Federal Action.38 It has been held: that, when no actual possession has been taken, property is not put into the exclusive custody of the State Court by the institution of a suit to establish and enforce a lien thereupon, when no actual possession has been taken; 39 nor by the filing of

determine the right to the use of a church held by trustees who were made defendants). Amusement Syndicate Co. v. El Paso Land Imp. Co., 251 Fed. 345, (a suit to compel the removal of part of a building when a suit in the State Court for the same purposes by substantially the same parties had previously been instituted).

33 Farmers' L. & T. Co. v. Lake St. El. R. Co., 177 U. S. 51, 44 L. ed. 667. Cf. Humane Bit Co. v. Barnet, 117 Fed. 316; McKinney v. Landon, C. C. A., 209 Fed. 300.

34 Louisville T. Co. V. Knott, C. C. A., 130 Fed. 820.

35 St. Louis & S. F. R. Co. v. Hadley, 155 Fed. 220.

36 White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183.

37 Empire Trust Co. v. Brooks, C. C. A., 232 Fed. 641. Contra, McKin

ney v. Kansas Natural Gas Co., 206
Fed. 772; Central Dist. Print. &
Tel. Co. v. Farmers & P. Nat. Bank,
C. C. A., 255 Fed. 59.

38 Pac. Coast Pipe Co. v. Conrad City Water Co., 237 Fed. 673.

39 Compten v. Jesup, 68 Fed. 263, 283; Morrill v. Am. Reserve Bond Co., 151 Fed. 305; Jackson v. Parkersburg & O. V. Ry. Co., 233 Fed. 784. See Jacob Tome Institute v. Whitcomb, C. C. A., 160 Fed. 835. See Rodgers v. Pitt, 96 Fed. 668, 673. But where the State courts had held that, under its statutes, the filing of a petition was the institution of the suit, it was held that the filing of a petition for partition precluded a subsequent suit in the Federal court prior to the service of process. Mound City Co. v. Castleman, C. C. A., 187 Fed. 921, affirming 177 Fed. 510.

a bill, which does not pray for a receiver, when a receiver is appointed by another court before the first court is asked to make such an appointment.40 The Federal Court acquires no exclusive jurisdiction over the property by the issue of a summons when the suit in the State Court is begun before the bill in equity is filed.41

In personal actions, the priority of a suit is ordinarily determined by the time when the parties are served with process and not by the date of the filing of any papers in the same.42

Property continues in the custody of a court until the cause is practically terminated, or the custody finally abandoned; although, it has been held, that a formal order of termination is not indispensable. When a receiver, appointed by a Federal court, has been discharged upon the filing of a bond by a defendant, the Federal court abandons its custody of the property and a State court may appoint a receiver thereof; 44 and it is improper for the District Court of the United States to vacate its order of discharge and claim possession by virtue of its prior receivership; 45 but where, before a receiver appointed by a State court. had taken possession, an appeal accompanied by a supersedeas staying proceedings was taken from a State court of review, which subsequently affirmed the order, a receiver appointed by a Federal court pending the appeal was directed to surrender his possession to the State receiver.46 The discharge of a Federal receivership, before the appointment of a State receiver, was held to validate the latter; although made in a suit sustained

40 Knott v. Evening Post Co., 124 Fed. 342. See Empire Trust Co. v. Brooks, C. C. A., 232 Fed. 641. 41 Waldo v. Wilson, C. C. A., 231 Fed. 654, reversing 221 Fed. 505.

42 Benoist v. Smith, 191 Fed. 514. 43 Buck v. Piedmont & A. L. Ins. Co., 4 Fed. 849; Andrews v. Smith, 5 Fed. 833; Lake Nat. Bank v. Wolfeborough Sav. Bank, C. C. A., 78 Fed. 517; Foster v. Lebanon Springs R. Co., 100 Fed. 543, but see Shields v. Coleman, 157 U. S. 168, 181, 39 L. ed. 660, 665; Mis

souri Pac. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536.

44 Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660. But see Union Trust Co. v. Rockford, R. I. & St. L. R. Co., 6 Biss. 197; $55, infra.

45 Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660. But see Union Trust Co. v. Rockford, R. I. & St. L. R. Co., 6 Biss. 197, $55, infra.

46 Texas v. Palmer, C. C. A., 22 L.R.A. (N.S.) 316, 158 Fed. 705; aff 'd. Palmer v. Texas, 212 U. S. 118.

during the pendency of the Federal receivership.47 It has been held that a State sheriff may seize property while still in the possession of the United States marshal, after an order by the Federal court directing its return to its owner. 48

Where the Federal court, in its decree of foreclosure and sale, reserved, for future adjudication, all questions arising under the pleadings or proceedings not therein disposed of or determined; it was held, that a State court had no power to establish, or to foreclose, a lien upon the property in the hands of a purchaser at the foreclosure sale.49 But not when there is no such reservation; even, it has been held, when the decree required the purchaser to assume the obligation that the lien secured.50 It has been held that a State court may take jurisdiction of a suit against the purchaser at a foreclosure sale, to enforce his liability to pay a debt of the mortgagor, which he assumed as part of the consideration.51 It has been held that comity requires a State court to be bound by the Federal court's determination, as to when the latter's possession and control of property, of which it first acquired jurisdiction, ceases,52

This doctrine does not prevent the filing of a bill to set aside.53 or stay,54 proceedings under a judgment or decree of a State court; nor, it has been held, a bill to enforce a decree of a State court pending an appeal therefrom which does not operate as a supersedeas; nor does the doctrine apply to a case where the

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47 Liggett v. Glenn, 51 Fed. 381. 48 Daniels v. Lazarus, 665 Fed. 718; Lazarus v. McCarthy, 32 N. Y. Supp. 833. But see infra, § 56.

49 Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, 52, L. ed. 379; s. c., 208 U. S. 609, 52 L. ed. 642; Fidelity Insurance Trust & Safe-Deposit Co. v. Norfolk & W. R. Co., 88 Fed. 815; Taylor v. Norfolk & O. V. Ry Co., C. C. A., 162 Fed. 452; Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355.

50 Tr. Co. of America v. Norfolk &

S. Ry. Co., 183 Fed. 803.

51 Guardian Trust Co. v. Kansas City Southern Ry Co., C. C. A., 146 Fed. 337. But see Fidelity

Insurance, Trust & Safe-Deposit
Co. v. Norfolk & W. R. Co., 88
Fed. 815.

52 Swinerton v. Oregon Pac. R. Co., 123 Cal. 417, 56 Pac. 40. So held of a Federal court, Hall v. Ames, 182 Fed. 1008.

53 Gaines v. Fuentes, 92 U. S. 10, 23 L. ed. 524, Barrow v. Hunt.

54 Kern v. Huidekoper, 103 U. S. 485, 491, 26 L. ed. 354, 356, 357; In re Iowa & Minnesota Construction Co., 10 Fed. 401. But see Contral Nat. Bank v. Stevens, 169 U. S. 432, 42 L. ed. 807; Cornue v. Ingersoll, C. C. A., 176 Fed. 194.

55 Baltimore & O. R. Co, v. Wabash R Co., C. C. A., 119 Fed. 678.

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