50 F. 705 | U.S. Circuit Court for the District of Eastern Wisconsin | 1892
The defendants, citizens of New York, brought suit in this court against Messrs. Cotzhausen, Sylvester & Schei-ber, citizens of Wisconsin, to recover certain moneys claimed to be owing from them. Pending that action, and before trial thereof, the plaintiff here, a citizen of Wisconsin, brought this suit in a court of the state of Wisconsin, and therein garnished the defendants in the other suit as debtors of the defendants here, and for the debt which was the subject-matter of controversy in that other suit. The garnishees answered, and inter alia pleaded the pendency of the prior suit against them in this court. There was no personal service of process upon the defendants, substituted service being had by publication under the state law. The basis of jurisdiction was that the debt garnished was property of the defendants within the state, and subject to attachment. Within the time for answering, and without otherwise appearing to the suit, the defendants filed in the state court their petition for the removal of the suit into this court, and it was removed accordingly. The defendants now appear specially to a motion to dismiss this suit for want of jurisdiction of the state court in this: that the debt was not subject to garnishment because of the pendency of the prior suit against the garnishees in another jurisdiction; that, therefore, no property or debt was impounded in the state court which could be subjected to the payment of the plaintiff’s demand if and when ascertained, and there was no res for the exorcise of any jurisdiction by the state tribunal.
It is objected preliminarily that the filing of the petition for removal
“ Counsel may be correct in supposing that, if the case had been removed to the federal court, all these defendants would have been in that court. The purpose of the petition was to put the case in the federal court for the purpose of trial and final disposition, and it might well be held that the granting of the prayer of the petition subjected all the defendants to the jurisdiction of that court. But it does not follow that the defendants were before the superior court for the like purposes.”
The motion presents the question whether the prior suit in the federal court against the garnishee had the effect to oust the state court of jurisdiction to entertain this suit. Railing personal service of process or voluntary subjection to jurisdiction, the proceeding in the state court was in its essential nature a proceeding in rem, operative only upon the liability impounded by the garnishee proceedings. Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U. S. 714. If, by reason of the prior suit in the federal court, the state court had not jurisdiction over the debt of the garnishees, the proceeding was wholly void. The principle is established that, as between courts of concurrent jurisdiction, that which first obtains possession of the controversy, or of the property in dispute, must be allowed to dispose of it finally without interference or interruption from the co-ordinate, court. The principle has been frequently stated and its limitation declared by the supreme court. Thus, in Covell v. Heyman, 111 U. S. 176, 182, 4 Sup. Ct. Rep. 355, it is said:
“The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exorcise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States it is -something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and, although they coexist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of tlie court from which it issues.”
In Heidritter v. Oil Cloth Co., 112 U. S. 294, 5 Sup. Ct. Rep. 135, it was held that when proceedings in rem are brought in a state court, and analogous proceedings in rem in a court of the United States against the
The decisions upon the effect of the pendency of a prior suit by a defendant against the garnishee establish the principles: (1) The pend-ency of such an action in the same court will not preclude the charging of the garnishee; (2) where the two proceedings are in courts of different jurisdiction, that which was first instituted will be sustained; (3) when the garnishee, if charged, cannot avail himself of the judgment in attachment as a bar to recovery in the prior action against him, he cannot be held as garnishee. Drake, Attachm. § 621. These principles rest in the equitable consideration that the garnishee ought not to be twice cast for the same debt. Within these principles, and by the decision in Wallace v. McConnell, 13 Pet. 136, the garnishees here, the suit remaining in the state court, ought not to be charged, because they could not, in the prior suit against them in this court, plead payment of judgment in attachment in satisfaction, in whole or in part, of the claim asserted against them. But does it follow that therefore the state court was without jurisdiction? I think not. The debt of the garnishees was liable to be impounded to satisfy the demand of the plaintiff. If exempt therefrom, it was only because of the prior suit. But that was a suit in personam. The court in which it was depending, although one of different jurisdiction, had no custody of property subject to be interfered with by the suit in the state court. If both suits were in rem, touching the same property, the court last asserting control would not be ousted of jurisdiction. It could proceed so far as its action would not have the effect of avoiding the jurisdiction of the court first exercising jurisdiction. Heidritter v. Oil Cloth Co., supra. Here the one suit was to declare liability, the other to subject that liability to satisfaction of another debt-. It is true that the federal court, in assertion of its rightful jurisdiction, would not permit any action of the state court in the subsequent suit to stay its hand in declaring the debt or in enforcement of satisfaction of it. But that is not
The removal of the suit into this court draws to it jurisdiction over the ancillary proceeding against the garnishees. Pratt v. Albright, 10 Biss. 511, 9 Fed. Rep. 634; Cook v. Whitney, 3 Woods, 715, 719. While without jurisdiction of the persons of the defendants, this court, by virtue of the removal acts, takes the jurisdiction possessed by the state court over the res, and may rightfully determine the liability of the garnishees. Whether, the proceeding being now removed into this court by the procurement of the defendants, and, in the language of the removal act “to proceed in the saíne manner as if it had been originally commenced” in this court, the plea of prior suit in this jurisdiction is longer availing, is a question not arising upon this hearing. The motion to dismiss is overruled.