128 F. 183 | U.S. Circuit Court for the District of Western Texas | 1904
(after stating the facts as above). ■ After the removal of the cause, first instituted in the state court, the plaintiff, Starnes, procured an order of this court dismissing the suit, without prejudice to his right to reinstitute the same. That he had the right, under the circumstances of the case, to an order of dismissal, there can be no doubt. Pullman Car Co. v. Transportation Co., 171 U. S. 145, 146, 18 Sup. Ct. 808, 43 L. Ed. 108; Chicago & Alton Railroad Company v. Union Rolling Mill Company, 109 U. S. 702, 3 Sup. Ct. 594, 27 L. Ed. 1081; City of Detroit v. Detroit City Railway Co. (C. C.) 55 Fed. 569. And after the suit was dismissed it was entirely out of this court, and Starnes, by the terms of the order, had the right to institute another suit in any court of competent jurisdiction. He saw proper to bring his second suit in the state court, and, although he claims less than $2,000, no reasop is perceived why he may not so do, notwithstanding the amount may not be sufficient to confer jurisdiction upon this court. Gassman v. Jarvis (C. C.) 100 Fed. 146; Hooper v. Atlanta, etc., Ry. Co., 106 Tenn. 28, 60 S. W. 607, 53 L. R. A. 931; McIver v. Florida, etc., R. R. Co. (Ga.) 36 S. E. 775; Rodman v. Mo. Pac. Ry. Co. (Kan.) 70 Pac. 642, 59 L. R. A. 704; Hughes v. Green, 84 Fed. 833, 28 C. C. A. 537. The case of Railroad Company v. Fulton, 59 Ohio St. 575, 53 N. E. 265, 44 L. R. A. 520, relied upon by counsel for the plaintiff, has been thoroughly considered in several of the cases above cited, and the courts have uniformty declined to follow it.
It may be noted that the plaintiff, in the present bill, has not removed 'nor attempted to remove the second suit to this court. That suit remains/ where it was instituted, in the state court, and the purpose of the plaintiff is to restrain its further prosecution. Under these circumstances the case comes clearly within the inhibition of section 720 of the Revised Statutes, which provides: “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Upon this point it was said by Mr. Justice Bradley, as the organ of the court, in Haines v. Carpenter, 91 U. S. 257, 23 L. Ed. 345 : “In the first place, the great object of the suit is to enjoin and stop litigation in the state courts, and to bring all the litigated questions before the Circuit Court. This is one of the things which the federal courts are expressly prohibited from doing. By the act of March 2, 1793 [1 Stat. 334, c. 22, § 5], it was declared that a writ of injunction shall not be granted to stay proceedings in a state court. This prohibition is repeated in section 720 of the Revised Statutes [U. S. Comp. St. 1901, p. 581], and extends to all cases except where otherwise provided by the bankrupt law.” See, also, United States v. Parkhurst-Davis Co., 176 U. S. 317, 20 Sup. Ct. 423, 44 L. Ed. 485; Moran v. Sturges, 154 U. S. 256, 14 Sup.
There are, it is true, certain exceptions to the general rule above announced, but, as the second suit, instituted by Starnes in the state court, has not been removed to this court, and therefore the jurisdiction of this court has not attached, it becomes unnecessary here to indicate such exceptions or limitations as may exist.
The prayer for injunction is denied, and the bill is dismissed.
