This сause was before this court on a former appeal. See Franz v. Buder,
The amended bill of complaint alleges that the plaintiff is a citizen of the state of Kansas, that the defendant Gustavus A. Buder is a citizen of the state of Missouri, and that the defendant Gustav A. Franz is a citizen of either the state of Arizona or the state of California. It then alleges substantially the same facts as were set up in the original bill. It further alleges that, the ten children of Ehrhardt D. Franz, deceased, and Sophie Franz, were Gustav A. Franz, Minna F. Kleinsehmidt, Walter G. Franz, Ernst H. Franz, Otto B. Franz, Amanda F. Wheeler, Henrietta A. Holdoway, Johanna F. Fiske, Adelaide (or Adelheide) F. Zimmermann, and the plaintiff. It specifically alleges the citizenship of the defendants, and avers that they are citizens of states other than the state of Kansas, of which the plaintiff is a citizеn and resident. It further alleges that the defendants, other than the defendant Gustavus A. Buder, are either heirs of and beneficiaries under the will of Ehrhardt D. Franz, deceased, or personal representatives of or heirs of deceased heirs of Ehrhardt D. Franz, deceased, and are all of the persons in being, natural and artificial, who are interested in the properties mentioned and referred to in the bill.
It рrays that the defendants Gustavus A. Buder and Gustav A. Franz be required to make full disclosure and discovery of the nature, condition, extent, and value of the various properties referred to in the bill and in which the plaintiff claims a remainder interest; that they be restrained and enjoined from selling or otherwise disposing of any of the stocks referred to in the bill; that they be required to give adequate security for the protеction of the present value of the plaintiff’s vested remainder interest in and to one-tenth of such properties; and that the plaintiff’s title to such remainder interest be adjudged, determined, and quieted as against the defendants.
On March 31, 1926, the plaintiff also filed an ancillary bill of complaint for an injunction against G. A. Franz and G. A. Buder as trustees for Sophie Franz, Sophie Franz, Gustav A. Franz, Gustavus A. Buder, Oscar E. Buder, Gustavus A. Buder, Jr., Aurelius W. Wеnger, and Buder & Buder, a copartnership composed of the four defendants last above named. In the ancillary bill, plaintiff alleged that G. A. Franz and G. A. Buder as trustees for Sophie Franz, and Sophie Franz and Gustav A. Franz, by their attorneys, Buder & Buder, on February 3, 1926, instituted and filed a certain suit in equity in the circuit court of the city of St. Louis, Mo., against plaintiff and others, in which they set forth in substance the same matters and things as are set forth in the original bill and amended bill of complaint in this cause, and in which they seek and pray in substance the same relief which is sought and prayed for in said original and amended bill of complaint in this cause; that said suit was then pending; that process against the defendants therein, including this plaintiff, had been issued and served, and was returnable at the opening of the April term, A. D. 1926, of said circuit court, beginning on Monday, April 5, 1926; that unless enjoined, thе plaintiffs therein would obtain orders, decrees, and judgments which would prejudiciously affect, impair, and defeat the jurisdiction of the trial court in the present cause. On April 3, 1926, plaintiff caused a copy of a notice, *799 that on April 5, 1926, the plaintiff would move and apply for a preliminary injunction as prayed for in the ancillary bill, together with a copy of the ancillary bill, to be served upon the firm of Buder & Buder.
On April 7, 1926, the Mississippi Valley Trust Company, as administrator with the will annexed of the estate of Ernst H. Eranz, deceased, filed an answer to the amended bill of complaint of the plaintiff and a cross-bill against the defendants Gustavus A. Buder and Gustav A. Eranz, both individually and as trustees for Sophie Eranz, in which it sets up substantially the same facts as are alleged in the amended bill of plaintiff. It prays that the defendants Gustavus A. Buder and Gustav A. Franz be rеquired to give security adequate for the protection of the present value of the vested remainder interest of the estate of Ernst H. Franz, deceased, in and to one-tenth of the properties, and that its title to sueh vestéd remainder interest be adjudged, determined, and quieted.
On April 7, 1926, the Mississippi Valley Trust Company, as administrator with the will annexed of the estate of Walter G. Franz, deceased, filed a likе answer and cross-bill in behalf of sueh estate.
On April 8, 1926, the trial court entered its order denying the prayer of the ancillary bill for a preliminary injunction. This is an appeal from that order.
Thereafter plaintiff filed a motion in this court to advance and hear the appeal. This matter came on for hearing on April 21,1926, before Circuit Judges Sanborn and Van Valkenburgh. Upon sueh hearing, and on April 21,1926, this court entered an order by which it advanced the appeal, set it for hearing on the merits on May 31, 1926, and enjoined the defendants to the ancillary bill from further prosecuting the action in the circuit court of the city of St. Louis until the further order of this court.
The defendants to the ancillary bill raise certain questions going to the jurisdiction of the eourt, which should be disposed of before the merits are considered.
They contеnd that no subpoena, summons, writ, or other legal process upon the ancillary bill was either issued or served upon the defendants thereto, except the notice referred to above, which was served -upon the firm of Buder & Buder, and that therefore the trial ?.ourt acquired no jurisdiction over the person of the defendants, and for that reason, properly denied the application for the temporary injunction.
Equity rule No-. 73 and 38 Stat, 737 (U. S. Comp. St. § 1243a), provide that no preliminary injunction shall be granted without notice to the opposite party. Absent this statute and rule, a court of equity, in the exercise of a sound discretion, might properly grant a temporary injunction without notice and before the service of process. L. C. Smith
&
Bros. Typewriter Co. v. Riddlemoser Co.,
The sufficiency of the notice, both in respect of time and contents under the particular circumstances of each ease, is a matter for the determination of the trial eourt in the exercise of a sound discretion. Lawrence v. Bowman,
The defendants to the ancillary bill further contend that the defendants Mississippi Valley Trust Company as administrator of Walter G. Franz, deceased, and Mississippi Valley Trust Company as administrator of Ernst H. Franz, deceased, Sherman H. Kleinsehmidt, Helen Kleinsehmidt, Eleanor Kleinsehmidt, and Gustavus A. Buder are all citizens of the stаte of Missouri; that the interests in the controversy of the Mississippi *800 Valley Trust Company as the administrator of such estates are identical with, and not antagonistic to, the interests of the plaintiff; that it is the duty of the court to realign the parties on opposite sides according to their interest in the controversy; that, when this has been done, there will be a controversy between the Mississippi Valley Trust Company as .such administrators, as plaintiffs, and Gustavus A. Buder, as defendant; that they are citizens of the same state; and that therefore no diversity of citizenship exists, and the court has no jurisdiction of- the cause of action set up in the original bill upon which the ancillary bill depends.
In the former opinion we held that the present owners of the other nine-tenths of the remainder estate were indispensable parties. We did not hold that they were indispensable parties plaintiff. A tenant in common may bring a suit to establish and quiet the title to his undivided interest, without joining with him his cotenants as parties plaintiff. Goldsmith v. Gilliland (C. C.)
We are unable to agree with the contention that the Mississippi Valley Trust Company, as administrator of the estates of Walter G. Franz, deceased, and Ernst H. Franz, deceased, respectively, must be aligned as parties plaintiff. The plaintiff, by his amended bill, seeks to determine the particular property to which his one-tenth remainder interest attaches, and to establish and quiet the title to such remainder interest as agаinst all parties defendant. The Mississippi Valley Trust Company seeks the same kind of relief, but respecting the one-tenth remainder interests belonging to the estates of Ernst H. Franz, deceased, and Walter G. Franz, deceased. Each seeks to establish and protect for himself or itself, and not for the three jointly, his or its own remainder interest. In suits respecting undivided interests in property between the several owners аnd claimants thereof, two or more of the parties frequently seek the same kind of relief against each other respecting their separate interests, and make common cause against one defendant who claims the whole. In such a ease, the parties who make common cause against one defendant need not necessarily be aligned as parties plaintiff. Belding v. Gainеs (C. C.)
In Belding v. Gaines, supra, the late Mr. Justice Brewer, then Circuit Judge, passing upon a similar question, said:
“The complainant is a citizen of Texas; the defendants all citizens of Arkansas; prima facie, therefore, this court has jurisdiction. But these facts appear, and upon them a plea in abatement to the jurisdiction has been filed. One Belding died, having the equitable title to a tract of land in Arkansas, and leaving four heirs. One of them, a defendant herein, obtained the legal title. The complainant is one of the heirs, and files this bill, claiming as against such defendant a one-fourth interest in the property, and as against all the defendants — the other heirs being made defendants — partition. Such other heirs filed a cross-bill, claiming their separate ownerships of one-fourth interest, and also asking partition. It is insisted that the interests of these two defendants are the same as those of the complainant, and that they are eollusively joined as defendants for the'purpose of giving this court jurisdiction; that the court should ignore the action of the pleader, rearrange the status of the parties litigant, and place such last-named defendants Qn the side of the complainant; and, so placing them, there would be a suit between citizens of this state, of which this court could not take jurisdiction. I think this is a mistake. It may be true that the complainant and the two defendants are alike interested in divesting the other defendant of whatever right and protection he may claim from holding the legal title, but there their identity of interest ceases. Each seeks to recover for himself, and not for the three jointly, his one-fourth share of the property. Partition implies a setting apart to each owner his hitherto undivided interest, and each owner has a separate interest in establishing the fact and extent of his title, and in securing his *801 separate share of the estate. Take an ordinary law action. There must be a unity of interest, not merely in the subject-matter of the action, but also in the relief sought, before two parties can be joined as plaintiffs.
“Tаke, for illustration, a ease I have just decided in the Eastern district of Missouri. Keary v. Life Ass’n (C. C.)
See, also, Lbr. Co. v. Reger, supra.
In the instant ease, the plaintiff seeks to establish and protect his own remainder interest, and the Mississippi Valley Trust Company, as such administrators, seeks to establish and protect the remainder interests of the estates whieh it represents, and the fact that they make common cause against certain of the defendants respecting their several separate interests does not require that they be aligned as parties plaintiff.
It is therefore our conclusion that the court has jurisdiction of the original bill.
Assuming the allegations of the ancillary bill to be true, was the plaintiff entitled to a preliminary injunctiоn to preserve and protect the jurisdiction of the trial court lawfully acquired over the subject-matter of the cause?
In our former opinion we said:
“This suit concerns the title to and ownership of certain specific property alleged to be in the hands of the trustees in the city of St. Louis, and within the jurisdiction of the District Court, and involves the potential necessity of assuming control of that property for the purpose of еnforcing any decree that may be rendered, and of preventing any disposition of the property that may impair the efficacy of that decree.”
We there held that the original action was in the nature of an action in rem, and that process could be served upon nonresident defendants under the provisions of section 57 of the Judicial Code (Comp. St. § 1039).
In Kline v. Burke Constr. Co., 260 U. S 226,
“It is settled that, where a federal court has first acquired jurisdiction of the subject-matter of a cause, it may enjoin the parties from proceeding in a state court of concurrent, jurisdiction where the effect of the action would he to defeat or impair the jurisdiction of the federal court. Where the action is in rem, the effect is to draw to the federal court the possession or control, actual or potential, of the res, and the exercise by the state court of jurisdiction over the same res necessarily impairs, and may defeat, the jurisdiction of the federal court already attached.”
The Supreme Court, in the same opinion, quotes with approval from Baltimore
&
Ohio R. Co. v. Wabash R. Co. (C. C. A. 7)
“It is settled that, when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted. * * * The rule is not only one of comity, to prevent unseemly conflicts between courts whose jurisdiction embraces the same subject and persons, but between state courts and those of the United States it is something more. ‘It is a principle of right and law, and therefore of necessity. It leaves nothing to discretion or mere convenience.’ Covell v. Heyman,
In Farmers’ Loan
&
Trust Co. v. Lake Street Elevated Ry. Co.,
“Nor is this rule restricted in its аpplication to cases where property has been actually seized under judicial process before a second suit is instituted in another court, but it often applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in suits of a similar nature where, in the progress of the litigation, the court may be compelled to assume the possession and control of the-property to be affected.”
See, also, Chillicothe Furniture Co. v. Revelle, Receiver of Interstate Casualty Co. (C. C. A. 8)
It clearly appears from the allegations of the ancillary bill that the trial court in the original proceeding acquired jurisdiction over the subject-matter, in an action quasi in rem, prior to the institution of the suit in the statе court, and that the latter suit will impair and may defeat that jurisdiction. Such being the case, the plaintiff was entitled to a preliminary injunction.
The order of the trial court is therefore reversed, and an order will be entered, enjoining the defendants to the ancillary bill from further prosecuting the suit in the state court until the final hearing upon the ancillary bill and the further order of the court, and the costs will be assessed against the defendants to the ancillary bill.