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United States court of admiralty.10 It has been held that while a vessel is in the custody of a sheriff services on board are not maritime in their nature and cannot create an admiralty lien.11 In the State of New York, where a warrant of attachment, issued by a District Court of the United States, has been duly filed in the office of the clerk of the court, in the same State, but in a different district from that where the writ was issued; the State court will not grant an injunction against the sale of the same, although the validity of the levy is contested; but will leave that matter for determination by the Federal courts.12 It has been held that an injunction by a State Court forbidding the marshal from returning the property will not justify him in withholding it from the person legally entitled to the same.13

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It was held that after the levy upon land of an attachment issued by a State court of Tennessee, the Federal court cannot appoint a receiver of the same in a suit subsequently begun.14 It has been held: that where the levy of 15 an attachment upon real estate gives to the court neither actual, nor constructive, possession thereof, but merely creates a lien upon the same: it can consequently be taken into the possession of a receiver of a Federal court subsequently appointed; and that where the property is not ample to meet all the claims against it, the Federal court will not permit its sale under execution before the title is acquired by its own decree.16 Where a State statute provides for successive attachments of the same property a prior attachment in a State court affords no ground for the discharge of an attachment in a Federal court.17 Otherwise, a Federal court will

10 Fountain v. 624 Pieces of Timber, 140 Fed. 381.

11 The Bethulia, 200 Fed. 866.

12 Beardslee v. Ingraham, 183 N. Y. 411, 3 L.R.A. (N.S.) 1073. Previous to this decision, the Federal court had denied an injunetion against the prosecution, by State receivers, of an action to enjoin the marshal's sale. Ingraham v. National Salt Co., 139 Fed. 684. Cf. Hale v. Bugg, 82 Fed. 33.

13 Kantor v. Murchie, 210 Fed. 573.

14 Southern Bank & Tr. Co. v. Folsom, C. C. A., 75 Fed. 929.

15 Re Hall & Stillson Co., 73 Fed. 527; Pac. Const. Pipe Co. v. City Water Co., C. C. A., 245 Fed. 846 (where the Federal court respected the possession of a receiver of the State court appointed under similar circumstances).

16 In re Hall & Stillson Co., 73 Fed. 527.

17 D. E. Loewe & Co. v. Lawlor, 130 Fed. 633.

not appoint a receiver of property held by a sheriff under a common-law writ, levied before the receiver's appointment was prayed.18

A writ of replevin, issued by a State court, to take property within the possession of a marshal of the United States,19 and an injunction interfering with the marshal's control of the Same,20 are void, and a case of the latter character may be removed to the District Court of the United States. The Federal court may, however, entertain a suit against a State sheriff for damages caused by an illegal levy.21 The custody of property by a Federal court, under a levy by attachment, does not prevent the State courts from subsequently deciding the title to the same in an interpleader suit; and it has been held, that the decision therein will be binding upon the District Court of the United States. 22 The levy by a State court, upon land in the possession of a person not a party to the suit, will not prevent him from suing in the Federal court, to cancel the deed subsequently given to the purchaser at the execution sale; nor from obtaining, from such court, an injunction against the sale.23 In a proper case, a suit may be removed to a Federal court, notwithstanding the fact that a State court has previously therein taken property into its possession under a common-law writ.24

Where there is a dispute between the State sheriff and the United States marshal as to the right to possession, the proper remedy is ordinarily a petition of intervention pro interesse suo by the sheriff in the Federal action.25 It has been held that an original bill for an injunction will not lie.26 But an ancillary

18 Southern B. & T. Co. v. Folsom, C. C. A., 75 Fed. 929; Dodds v. Palmer Mountain Tunnel Co., 188 Fed. 447.

19 Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Summers v. White, C. C. A., 71 Fed. 106.

20 Frank v. Leopold & Feron Co., 169 Fed. 922.

21 Porter V. Davidson, 62 Fed.

626.

22 Montgomery v. McDermott, 87 Fed. 374.

23 Provident Life & Trust Co. v. Mills, 91 Fed. 435.

24 Kern v. Huidekoper, 103 U. S. 485, 491, 492, 26 L. ed. 354, 356, 357.

25 Pickett v. Tiler & S. Co., 40 Fed. 313; Gambel v. Pitkin, 124 U. S. 131, 31 L. ed. 374. See Freeman v. Howe, 24 How. 450, 16 L. ed. 749; People's Bank V. Calhoun, 102 U. S. 256, 26 L. ed. 101; Beckett v. Sheriff of Hartford Co., 21 Fed. 32.

26 Pickett v. Tiler, & S. Co., 40 Fed. 313.

bill has been sustained in such a case. And it was said that in some cases a summary motion might be granted according to the circumstances.27

or

In order to preserve his right to a priority, it seems that the proper course is for the sheriff to serve upon the marshal 28 clerk of the Federal court, as the case may require, a notice of his writ directed to such Federal officer as garnishee. A writ of replevin issued by a State court in such a case is void.30 Although, it has been held, that proceedings in the State court, under an execution against the defendant's property, cannot be enjoined by the Federal court; when the sheriff had levied upon property not owned by the defendant judgment debtor, such an injunction was issued.31 A State court cannot levy an attachment or garnishee process against a debt pending an action in a Federal court to collect the same,32 Where the Federal court had attached a bank deposit, which was claimed by others not parties to the suit, and an action against the bank for its recovery had been instituted by one of these in a State court, it was held, that the plaintiff in the Federal court must appear in the State court and submit his rights to adjudication there for the protection of the bank; and that otherwise, his attachment should be set aside.33 When the defendant has been served with garnishee process before action has been brought against him to collect the debt, he may call the attention of the court to the fact that such garnishment has been made and not been terminated. The court will not proceed further until the termination of the garnishee proceedings. 34 Bankruptcy cases are an exception to this rule.35

§ 57. Effect of jurisdiction of another court over same cause of action. The doctrine does not prevent an action in personam

27 Krippendorf v. Hyde, 110 U. S. 276, 287, 28 L. ed. 145, 149, per Matthews, J. See Porter v. Davidson, 62 Fed. 626.

28 Gambel v. Pitkin, 124 U. S. 131, 31 L. ed. 374.

29 D. B. Martin Co. v. Shannon house, 203 Fed. 517.

30 Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Summers v. White, C. C. A., 71 Fed. 106.

21 Provident Life & Trust Co. v. Mills, 91 Fed. 435.

32 Wallace v. McConnell, 13 Pet. 136, 10 L. ed. 95; Rosenstein v. Tarr, 51 Fed. 368; Mack v. Winslow, 59 Fed. 316; Ohio R. Co. v. Fisher, C. C. A., 115 Fed. 929.

33 U. S. v. Neeley, 146 Fed. 763. 34 Rhederei A. Gessellschaft Oceana v. Clutha Shipping Co., 226 Fed. 339.

35 Infra, $ 59.

between the same parties involving the same issues; provided that the property is not seized therein.1 Where suits are pending in a State and a Federal court, to enforce the same cause of action, the usual practice is to stay proceedings in the court where the second case was begun until the first is determined; not to dismiss the second suit.2 A plea in abatement in such a case was not sustained; but a bill against an administrator, which sought to interfere with assets in the custody of a State court of probate, was held to be demurrable. Where the proceedings in the State court are of an administrative and not a judicial nature, the doc trine does not apply.5 Where the Federal court has first obtained jurisdiction it may enjoin proceedings in the State court subsequently begun.6 Where bills to enjoin the enforcement of a State statute had been previously presented to the Federal court, upon notice of an application to file the same, and restraining orders issued, but leave to file postponed because of the absence of one of the defendant's counsel; it was held: that these proceedings took precedence of subsequent suits in the State courts to enforce the statute; and that such subsequent suits by the defendants to the former bills might be enjoined; but where the Federal court had enjoined the enforcement of a State statute reducing the price of gas pending an adjudication concerning its validity in the suit there instituted, a State court held that it had power to enjoin the gas company from cutting off the supply of gas to a consumer for his refusal to pay the original price.R It has been said that the rule that the first court which acquires

$57. 1 Porter V. Davidson, 62 Fed. 626; Rejall v. Greenhood, 60 Fed. 784; Merritt v. American S. B. Co., 79 Fed. 228; Copeland v. Bruning, C. C. A., 127 Fed. 550. Cf. Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630. See infra, § 177.

2 Zimmerman v. SoRelle, 80 Fed. 417; Hughes v. Green, C. C. A., 84 Fed. 833; infra, § 177. See U. S. V. Belknap, 73 Fed. 19. Contra, R. M. Rose & Co. v. Southern Express Co., 223 Fed. 868; Woren v. Witherbee, Sherman & Co., 240 Fed. 1013.

3 See infra, § 177.

4 Lant v. Manley, 71 Fed. 7; reversed on another point, s. c., C. C. A., 75 Fed. 627. See supra, § 561. 5 Falls City Const. Co. v. Monroe County, 208 Fed. 482.

6 St. Louis & S. F. R. Co. v. Hadley, 155 Fed. 220; St. Louis & S. F. Ry. Co. v. M'Elvain, 253 Fed. 123, infra, $ 270a.

7 St. Louis & S. F. R. Co. v. Hadley, 155 Fed. 220. Supra, § 55.

8 Richman v. Consol. Gas. Co., 186 N. Y. 209. The Court of Appeals intimated that the State court of original jurisdiction should stay the

jurisdiction over a suit takes it to the exclusion of the other applies only where the parties to the suits or their privies are the same and the same relief is sought in both cases. It has been held that the pendency in a Federal court of a suit by a gas company against a city to set aside, as an impairment of the contract made by its franchise, an ordinance regulating the pressure in complainant's mains, does not justify an injunction against a subsequent suit by the city against the company in a State court for an accounting under the original ordinance granting the franchise, upon the ground that the contract rates charged were excessive because of insufficient pressure, although such second suit prays an injunction against the further collection of such rates.10 Where a suit by one riparian owner against another to enjoin interference with the complainant's use of water, had been first brought in a Federal court, a subsequent suit in a State court in a different State, when brought by a privy of the defendant against the complainant to the first suit, was held to be rightfully enjoined.11 Similar rules should usually be followed by the Federal courts when the State courts have first acquired jurisdiction of such suits for injunctions; 12 but it seems that they are not bound to do so. It has been held that the pendency in a State court of a suit to determine the validity of a State statute under the Federal Constitution does not divest the Federal court of jurisdiction of a subsequent suit involving the same question nor afford any reason to the Federal court for declining to assume jurisdiction even if the parties are the same.14 And in another case that where the previous suit was between private parties and the second is a proceeding instituted to determine the rights of all the parties interested there is no reason why the Federal court should not assume jurisdiction.15 It was held that a decree of a State court in personam, restraining a

trial until the determination in the Federal court of the issues there raised.

9 Jackson v. Parkersburg & O. V. El. Co., 233 Fed. 784.

10 Kansas City Gas Co. v. Kansas City, 198 Fed. 500.

11 Rickey Land & Cattle Co. v. Miller & Lux, 218 U. S. 258, 54 L. ed.

13

12 People's Gaslight & Coke Co. v. City of Chicago, 192 Fed. 398; Moss & Co., v. McCarthy, 191 Fed. 202.

13 People's Gaslight & Coke Co. v. City of Chicago, 192 Fed. 398.

14 R. M. Rose & Co. v. Southern Express Co., 223 Fed. 868.

15 Pac. Live Stock Co. v. Lewis, 241 U. S. 440.

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