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make in the exercise of its prior jurisdiction? Veci

must recognize and respect the right of the court to

of the statute; nor is it seen how the corporation or plaintiffs would be profited pending this litigation if the assignee is enjoined from acting. It must suffice that, on the record, it sufficiently appears that this court has no power to grant the provisional injunction.

The following are the principal cases cited by counsel, which have been fully examined and considered: Diggs v. Walcott, 4 Cranch, 179; Watson v. Jones, 13 Wall. 719; Haines v. Carpenter, 91 U. S. 254; Chaffin v. St. Louis, 4 Dillon, 19; Dial v. Reynolds, 96 U. S. 340; High on Injunctions, 109, 110, 111; Erwin v. Emory, 7 How. 172; Suydam v. Boyd, 14 Pet. 67; Union Bank v. Jolly, 18 How. 503; Green y.

Creighton, 23 How. 10; Payne v. Hook, 7 Wall. 425; Toudley v. Lavender, 21 Wall. 283; Andrews v. Smith, 5 FED. REP. 883; January v. Powell, 29 Mo. 241.

doubted authority it may order the property to be deli by the receiver to the assignee. It is, indeed, manifest the apprehension on the part of complainants that the court will so order, was the moving cause of the instit of the present suit. It appears from the record befo that in the course of the proceedings in the state cour corporation, the receiver, and the assignee all being pr in court and fully heard, that court decided that it is it to determine to whom the property shall be delivered the receiver shall be discharged. In this I have no that court is right. It has jurisdiction of the property of the parties claiming it. It may be that the assign not an officer of the state court in the same sense as pointed by the court; but it is manifest that, from moment an assignment is made under the state laws assignee is for many purposes subject to the orders

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McCRARY, C. J., (concurring.) The rule is that no injunction shall be granted by any court to interfere with the possession, control, or disposition of property which is in the hands of another court of co-ordinate jurisdiction. The reason for the rule is that its disregard would lead to conflicts between courts of equal authority, and recognizing no common arbiter, which conflicts might lead to the most serious and disastrous consequences. The great importance of the strict observance of this rule in the administration of justice in our state and federal courts has always been recognized in both forums, and for reasons which at once suggest themselves as very cogent.

I am disposed, so far as I am concerned, to uphold it fully, and, even in cases of doubt, to lean towards the adoption of that view which cannot possibly lead to conflict. The fact in the present case is that the property is now in the custody of the state courts. The possession of the receiver is the possession of the court itself, and the disposition of the property by the receiver is a matter to be ordered by the court, which has a perfect right to dispose of it as it pleases. That court has control not only of the property, but also of the receiver and the assignee, and in the exercise of the un

state couft. This is, howerer, not very material here, appears that the assignee has actually appeared in the court to claim the property, and is now claiming it in forum, and that the state court has decided that as the now stands in that court he is entitled to it. It woul tainly be a most unseemly interference on our part to at at this stage of the proceeding to take the control property out of the hands of that court. Suppose we s by a preliminary injunction, restrain the assignee from i under the assignment and from taking the property, right or authority have we to forbid the state court to the property delivered to the assignee? It is the plain

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of that court, when it comes to discharge its receis determine and direct him as to the disposition of the in his hands. How can we enjoin the assignee from i ing the property without interfering with a disposition which the state court may make and has a perfect ri

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of course, say in advance that the state court will or w order the property delivered to the assignee. If it has diction to so order, and may so order, that is enough

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doubted authority it may order the property to be delivered by the receiver to the assignee. It is, indeed, manifest that the apprehension on the part of complainants that the state court will so order, was the moving cause of the institution of the present suit. It appears from the record before us that in the course of the proceedings in the state court, the corporation, the receiver, and the assignee all being present in court and fully heard, that court decided that it is its duty to determine to whom the property shall be delivered when the receiver shall be discharged. In this I have no doubt that court is right. It has jurisdiction of the property and of the parties claiming it. It may be that the assignee is not an officer of the state court in the same sense as if appointed by the court; but it is manifest that, from the moment an assignment is made under the state laws, the assignee is for many purposes subject to the orders of the state court. This is, however, not very material here, for it appears that the assignee has actually appeared in the state court to claim the property, and is now claiming it in that forum, and that the state court has decided that as the record now stands in that court he is entitled to it. It would certainly be a most unseemly interference on our part to attempt at this stage of the proceeding to take the control of the property out of the hands of that court. Suppose we should, by a preliminary injunction, restrain the assignee from acting under the assignment and from taking the property, what right or authority have we to forbid the state court to order the property delivered to the assignee? It is the plain duty of that court, when it comes to discharge its receiver, to determine and direct him as to the disposition of the property in his hands. How can we enjoin the assignee from receiving the property without interfering with a disposition of it which the state court may make and has a perfect right to make in the exercise of its prior jurisdiction? We cannot, of course, say in advance that the state court will or will not order the property delivered to the assignee. If it has jurisdiction to so order, and may so order, that is enough. We must recognize and respect the right of the court to deter

mine the question either way according to its judgment, and not according to ours. If we interfere to determine it in advance, by preliminary injunction, we are plainly attempting to control the action of that court. It is no answer to say that we do not enjoin the court, but only the assignee. It may often happen that an injunction to restrain public officers, or private persons, if granted and enforced, will, in effect, tie the hands of the court under whose orders they are to act. If, for example, a party subject to the jurisdiction of a state court is enjoined by a federal court from obeying the orders of the former, this is an interference with the court as well as with the individual. And the difficulty is not lessened—it is rather increased-by issuing the injunction in advance of the order of the state court, but after it has possession of the subject.

It follows that application for relief by injunction, upon the grounds stated in the bill, must be addressed to the state court, which has possession of the property, control over the several claimants, and power either to order or forbid delivery to the assignee.

defendant appeared in the state court and pleaded the eral issue and the statute of limitations. The cause wa the state court continued at the February term, 1876, a June term, 1876, at the October term, 1876, at the Febr term, 1877, and at the June term, 1877. At the Oct term, 1877, George 0. Tollman had leave to file petiti intervention, whereby he alleged that he was the owner i simple of the land in controversy, having, after the mencement of this suit, purchased the same at master under a decree of foreclosure. He avers that under sai cree and sale he was placed in possession of the land b marshal, and defendant, Peterson, ejected therefrom, September 1, 1877. The petition of intervention allege substance, that all the interest, and the possession, o original defendant, Peterson, had, by virtue of the forecl and sale, passed to the purchaser, leaving Peterson thi ter a nominal party only. The petition of interventio

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filed October 23, 1877. On the same day the inter (Tollman) filed bis petition for removal of the cause circuit court of the United States. The petition is usual form, except that it avers the citizenship of the

I in the present tense. The removal was on the sam ordered by the state court. At the May term, 1880, court, the cause was tried, and resulted in a verdict i defendant. A motion to set aside verdict, and for trial, was afterwards made by plaintiff, and is still ing. More recently a motion was made by the pe to set aside the judgment and remand the cause to th court, upon the ground that “said judgment is void fo of jurisdiction in the court, the cause having been re from the state court, and it nowhere appearing that commencement of the suit the citizenship of the thereto was such as to authorize the removal there confer jurisdiction upon this court."

Wright, Gatch & Wright, for motion,

1. RigiT OF REMOVAL BY INTERVENOR.

Any one coming into a case by petition of intervention has the

same right of removal as an original party plaintiff or defendant. 2. PETITION FOR REMOVAL-AVERMENT OF CITIZENSHIP.

The petition for removal of such intervenor, if filed simultaneously with his petition of intervention, is sufficient if it aver the citizenship of the parties in the present tense; for, as to the intervenor, the filing of his petition of intervention is the commencement of the suit.

Motion to Remand.

Action of ejectment, instituted in February, 1876, by the plaintiff, C. W. Burdick, against the defendant, John Peterson, in the district court of Winneshiek county, Iowa. The

Chas. A. Clark, amicus curiæ, contra,

McCRARY, C. J. This court has several times hela petition for removal, or the record of the cause in ti

defendant appeared in the state court and pleaded the general issue and the statute of limitations. The cause was by the state court continued at the February term, 1876, at the June term, 1876, at the October term, 1876, at the February term, 1877, and at the June term, 1877. At the October term, 1877, George 0. Tollman had leave to file petition of intervention, whereby he alleged that he was the owner in feesimple of the land in controversy, having, after the commencement of this suit, purchased the same at master's sale under a decree of foreclosure. He avers that under said decree and sale he was placed in possession of the land by the marshal, and defendant, Peterson, ejected therefrom, about September 1, 1877. The petition of intervention alleged, in substance, that all the interest, and the possession, of the original defendant, Peterson, had, by virtue of the foreclosure and sale, passed to the purchaser, leaving Peterson thereafter a nominal party only. The petition of intervention was filed October 23, 1877. On the same day the intervenor (Tollman) filed his petition for removal of the cause to the circuit court of the United States. The petition is in the usual form, except that it avers the citizenship of the parties in the present tense. The removal was on the same day ordered by the state court. At the May term, 1880, of this court, the cause was tried, and resulted in a verdict for the defendant. A motion to set aside verdict, and for a new trial, was afterwards made by plaintiff, and is still pending. More recently a motion was made by the plaintiff to set aside the judgment and remand the cause to the state court, upon the ground that “said judgment is void for want of jurisdiction in the court, the cause having been removed from the state court, and it nowhere appearing that at the commencement of the suit the citizenship of the parties thereto was such as to authorize the removal thereof and confer jurisdiction upon this court."

Wright, Gatch & Wright, for motion.
Chas. A. Clark, amicus curice, contra.

McCRARY, C. J. This court has several times held that the petition for removal, or the record of the cause in the state

whether plaintiff, defendant, or intervenor, may rera cause by showing the necessary facts. It follows fror that as to an intervenor it is enough to show the citiza of the parties at the time of his intervention, for, ast that is the commencement or bringing of the suit.

But the above-cited section of the act of 1875 furthe vides that when, in any suit mentioned in the section, shall be a controversy which is wholly between citiz different states, and which can be fully determined as be them, then either one or more of the plaintiffs or defer actually interested in such controversy may remove sa to the circuit court of the United States for the prope trict." This clause very clearly applies to a contra between the original plaintiff and an intervenor who nu brought in in the course of the litigation and before tris is enough if the controversy described is in the suit; t1

court, under the act of 1875, must show the citizenship of the parties at the time of the commencement of the suit.* Assuming the correctness of that general rule, we are to inquire, how does it affect this case? The removal here was upon the petition of Tollman, the intervenor, who became the owner of all the interest of the original defendant by a purchase at judicial sale, made after this suit was brought and had been for some time pending, but before trial. The petition for removal was filed simultaneously with the petition of intervention, and the allegation is that the intervenor was a citizen of New York at the time of filing the petition, or, in other words, at the time he became a party to the suit. Of course, his citizenship before he became a party is unimportant, so far as this question is concerned. If he had the right to remove at all, it was manifestly sufficient to aver the citizen. ship of the parties at the time that right accrued; that is to say, at the time he became a party to the suit.

The only question to be considered, therefore, is whether a party who in good faith becomes the owner of property pending the litigation concerning the title thereto, in a state court, and who, by proper means, makes himself a party to the cause in such court before trial, is entitled to the benefits of the provisions of the act of March 3, 1875, relating to the removal of causes. In other words, if such a party be a non-resident of the state, has he, when coming into the case by intervention, the same right of removal that he would have had if originally a party plaintiff or defendant? The statute provides that in any suit of a civil nature, brought in any state court, involving over $500, in which there shall be a controversy between citizens of different states, “either party may remove said suit into the circuit court of the United States," etc. Section 2, Act of March 3, 1875. Can we, with propriety, limit the application of the words "either party" to the original plaintiff and defendant? I think not. The act applies to all bona fide litigants in the state courts, whether made parties originally or not. “Either party,".

*See Beede v. Cheeney, 5 FED. REP. 388; and Kaeiser v. Illinois Cent. R. Co., ante, 1.

no requirement that it shall be between the original p The intervenor became a defendant within the mean this clause, and since there was very clearly a contr between him and the plaintiff, in which the original à ant had no interest, and which could be fully determi between them, the right of removal existed.

If the petition for removal had not been filed until af intervention, it would, upon the principle of the case tofore decided by this court, have been necessary to a citizenship of the parties at the time of the interventio inasmuch as the petition to intervene and the petit: removal were filed at one and the same time, I am opinion that the use of the present tense in the latt sufficient.

It is not necessary to determine whether the motio time, (having been made after judgment,) since, ind ently of that question, it must be overruled. So orde

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