264 F. 959 | 3rd Cir. | 1920
This is an appeal by Essanay Film Manufacturing Company, an Illinois corporation, plaintiff below, from a decree of the District Court dismissing its bill of complaint against William R. Kane, a citizen of New Jersey. The bill alleges in part that the defendant instituted and is now prosecuting against the plaintiff in the Supreme Court of the state of New Jersey a suit at law for damages; that service of the summons issued in that suit was attempted to be made upon the defendant by service upon the Secretary of State of the state of New Jersey, under Laws N. J. 1900, c. 124; that for the reasons alleged in the bill such attempted service was wholly null and void; that the defendant did not appear, and judgment by default for want of appearance was entered against it. The bill prays that the defendant herein be enjoined from prosecuting his action to final judgment by assessing damages and from all further proceedings therein.
We think the court was right both in dismissing the bill and in the reasons given therefor. The sole purpose of tire bill is to obtain an injunction to prevent the defendant proceeding in the state court. The practical effect of such injunction would be to enjoin the state court from proceeding in the action. Such an injunction, except under the Bankruptcy Act (Comp. St. § 9585 et seq.), no court of the United States can grant. With this exception it is expressly forbidden by statute. Judicial Code, § 265; Diggs v. Wolcott, 4 Cranch, 179, 2 L. Ed. 587; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644. The ban of the statute is not evaded by directing the injunction to the litigating party. Peck v. Jenness, 7 How. 612, 12 L. Ed. 841; Coeur d’Alene Ry. & Nav. Co. v. Spalding, 93 Fed. 280, 35 C. C. A. 295. This rule is not modified by Simon v. Southern Railway Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492. The crux of that decision, as we understand it, is embodied in the following sentence appearing on page 124 of 236 U. S., on page 258 of 35 Sup. Ct. (59 L. Ed. 492):
“But when the litigation has ended and a final judgment has been obtained — and when the plaintiff endeavors to use such judgment — a new state of facts, not within the language of the statute, may arise.”
In the case at bar no one of the three conditions there mentioned by the Supreme Court exists. The litigation in the Supreme Court of New Jersey has not ended, a final judgment has not been. obtained, and, no final judgment having been obtained, the plaintiff is, of course, not endeavoring to enforce such judgment.
The decree below must be affirmed.