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

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 cases a summary motion might be granted according to the circumstances.27

29

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 or 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 and submit his rights to adjudication there for the protec tion 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 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

court

will

3

between the same parties involving the same issues; provided that the property is not seized therein. 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. 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; 7 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.8 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 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 pres

same

sure

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.18 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 deterthe 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

mine

water company from refusing to furnish water to the city on certain conditions, did not prevent a subsequent suit in the Federal court by a person in privity with the former defendaut to enjoin the city from preventing his removing the plant.16 Where the suit in the State court was to compel the removal of parts of a building it was held that the Federal court should not entertain a subsequent suit for substantially the same object.17 Where a bill was filed by a Federal court to remove a trustee, have another appointed in his place, or, in the alternative, for the appointment of a receiver and a cancellation of certain fraudulent bonds secured by the trust deed; it was held that the State court was not bound to recognize any subsequent order in proceedings afterwards brought in the State court for the appointment of a new trustee, in accordance with the deed of trust.18 A State court cannot levy an attachment or garnishee process, against a debt, pending an action in a Federal court to collect the same. 19 It has been held: that the pendency of a suit in a State court in another district, in which a trustee has been enjoined from beginning a foreclosure suit, does not affect the jurisdiction of a Federal court to foreclose the mortgage on the property in both States, at the suit of a majority of the bondholders. It has been held that the pendency of a suit in the Federal court to foreclose a lien, in which no receiver is appointed, does not affect the jurisdiction of a State court to entertain a suit for the foreclosure of a mortgage on the same property, when the mortgagee was not a party to the suit in the Federal court; and that the decree in the Federal court does not bind the mortgagee, nor affect the rights of a purchaser at the foreclosure sale.21

§ 58. Effect of the custody, by another court, of the person of an accused in criminal proceedings, or otherwise. This doctrine applies, to a limited extent, to the custody of a per

16 Laighton v. City of Carthage, Mo., 175 Fed. 145.

17 Amusement Syndicate Co. v. El Paso Land Imp. Co., 251 Fed. 345. 18 State Nat. Bank v. Syndicate Co., 178 Fed. 359.

19 Walace v. McConnell, 13 Pet. 136, 10 L. ed. 95; Rosenstein V. Tarr, 51 Fed. 368; Mack v. Winslow, 59 Fed. 316.

20 Woodbury v. Alleghany & K. R. Co., 72 Fed. 371.

21 National Foundry & Pipe Works v. Oconto City Water Supply Co., C. C. A., 113 Fed. 793. See National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 216, 46 L. ed. 157.