282 F. 100 | 8th Cir. | 1922
(after stating the facts as above). As the order of the court striking out parts of the cross-complaint of appellant was not final, it is not appealable, and cannot be considered on this appeal, as section 129 of the Judicial Code (Comp. St. § 1121) applies only to injunctions “granted, continued, refused, or dissolved, * * * or an application to dissolve an injunction shall be refused.” Ayres v. Carver, 17 How. (58 U. S.) 591, 15 L. Ed. 179; 3 C. J. 448. Prior to the enactment of this section by the Act of March 3, 1891, 26 Stat 828, and subsequent amendments, no appeal could be taken from any other than final judgments or decrees. Crosby v. Buchanan, 23 Wall. (90 U. S.) 420, 23 L. Ed. 138; Green v. Fisk, 103 U. S. 518, 26 L. Ed. 485; Lodge v. Twell, 135 U. S. 232, 10 Sup. Ct. 745, 34 L. Ed. 153; Economy Fuse & Mfg. Co. v. Killark Electric Mfg. Co., 235 Fed. 120, 148 C. C. A. 614; Gladys Belle Oil Co. v. Mackey, 216 Fed. 129, 132 C. C. A. 373. The two last-cited cases were decided by this court.
This leaves only the question whether the court erred in denying the interlocutory injunction for determination on this appeal. The suit against the Casualty Company was pending in the 'state court at the time the complaint of the bank was filed in this cause, and the cross-bill, asking for an injunction, was filed in the District Court. Section 265 of the Judicial Code (Comp. St. § 1242) prohibits an injunction to stay proceedings in a state court, except in bankruptcy proceedings. Without citing the numerous authorities, it is sufficient to refer to a few leading cases on that subject. Diggs v. Wolcott, 4 Cranch (8 U. S.) 179, 2 L. Ed. 587; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Gates v. Bucki, 53 Fed. 961, 4 C. C. A. 116; Patton v. Mar
An exception to this rule is where the national court has possession of the property and an action is instituted in a state court affecting the title to or the possession of that property, or when a title acquired under a decree of a national court is attacked in an action in a state court. Such were French v. Hay, 22 Wall. (89 U. S.) 231, 22 L. Ed. 799, Julian v. Central Trust Co., 193 U. S. 93, 34 Sup. Ct. 399, 48 L. Ed. 629, and Looney v. Eastern Texas R. R. Co., 247 U. S. 214, 38 Sup. Ct. 460, 62 L. Ed. 1084, cases cited by counsel for appellant. Another exception is when the execution of the judgment would be inequitable (Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870), or the state court was without jurisdiction. Simon v. Southern Railway Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492. This question was fully discussed by us in Hartford Life Ins. Co. v. Johnson, 268 Fed. 30.
The principal authority relied on in behalf of appellant is Burke Construction Co. v. Kline, 271 Fed. 605, decided by this court. But the facts in that case differ so materially from those in the instant case that it is clearly inapplicable. In that case the Construction Company had instituted its suit in the District Court, and,, while that action was pending in that court, the defendants instituted a suit, involving the identical issues in a chancery court of the state of Arkansas, and the majority of this court held that the action in the state court should be enjoined, upon the ground that the later action would deprive the Construction Company, a nonresident corporation of the right to select a national court as the forum in which it desired to try its cause. The court said:
“If the board, which subsequently, in March, 1920, brought its suit against the Burke Company and the sureties on its bond to secure an adjudication by that court of the same controversy between the same citizens, by a race of diligence lawfully may secure such an adjudication in the suit in the state court-before, in the orderly and proper course of proceeding in the suit in the federal court, the Burke Company is able to obtain such an adjudication and the enforcement thereof in the federal court, then the federal court’s adjudication will be made futile, because before it has rendered it the controversy will have become res adjudicata by the adjudication of the state court (Boatmen’s Bank v. Fritzlen [8 C. C. A.] 135 Fed. 650, 667, 68 C. C. A. 288; Insurance Co. v. Harris, 97 U. S. 331, 336, 24 L. Ed. 959; Barber Asphalt Paving Co. v. Morris [8 C. C. A.] 132 Fed. 945, 951, 66 C. C. A. 55, 67 L. R. A. 761), and the Burke Company will have been deprived of the right granted to it by the Constitution of the United States to the determination of its controversy with the board by the trial and adjudication thereof by the federal court, which first acquired jurisdiction of it and of the parties thereto.”
In the opinion the court distinguishes a number of authorities, among' them those relied on by counsel for appellant.
While a national court has jurisdiction of an action on a bond given in a proceeding pending in that court, as ancillary to the original action, regardless of a diversity of citizenship (Files v. Davis [C. C.] 118 Fed. 465, and authorities there cited), the obligee is not bound to resort to that tribunal, but may proceed in any court of competent jurisdiction (Bellamy v. St. Louis, Iron Mountain & Southern Ry., 220
“If, after the Land Company had brought its action in the federal court in Iowa, the defendant Arthur had brought a suit in Oklahoma against the Land Company for an adjudication of the controversy between these parties, and the Land Company had insisted upon its constitutional right to an adjudication by the federal court, and sought an injunction to prevent Arthur from depriving it of that right by an early decision of the question in the Oklahoma court, a different question would have been presented and a different answer returned.”
That the appellant is not entitled to an injunction upon the facts alleged in his cross-complaint has been fully determined in the cause be-: tween the same parties in the opinion of this court reported in 268 Fed. 487.
The order of the court below denying the interlocutory injunction was right, and is affirmed.