set aside or interfere with the enforcement of an interlocutory decree in a cause pending in another court, when such decree is not a contempt of a Federal court,67 It has been held that where the jurisdiction depends solely upon the ancillary nature of the bill, upon the dismissal of the former suit the ancillary suit must be dismissed for want of jurisdiction; 68 and that relief germane to the ancillary relief, if the prayer for the same does not make the bill multifarious, can be granted, although an independent original bill for such other relief could not have been maintained in the Federal court; but that if the ancillary relief is denied, all other prayers for relief fall with the same; and that affirmative relief against a person who is not a party, nor a privy, to the original action, and whose claims have not accrued prior to its commencement, cannot be granted.69 The dependence of an ancillary suit upon an original suit for purposes of jurisdiction does not throw both cases into hotchpot, and dispense with the ordinary rules of pleading and practice as to parties proper and necessary to each cause of action. The parties to the original bill have no more right to intervene in the dependent cause than if the court had independent jurisdiction of the same; and after jurisdiction has been acquired, the pleadings, practice and pro ceedings are pursued exactly as if it were an original suit." It has been held that the court does not in the second suit take judicial notice of the pleadings or proceedings in the former litigation, unless they are formally put in evidence.71 § 52. Property in the custody of another court of co-ordinate jurisdiction. In general. A court of the United States, through a spirit of judicial comity, will usually refuse to interfere with property in the custody of a State court.1 Conversely, $52. 1 Hagan v. Lucas, 10 Pet. 400, 9 L. ed. 470; Taylor v. Carryl, 20 How. 583; Peale v. Phipps, 14 How. 368, 14 L. ed. 459; Levi v. Columbia Ins. Co., 1 Fed. 206; Hubbard v. Bellew, 3 Fed. 447; Union Mut. Life Ins. Co. v. University of Chicago, 6 Fed. 443; Hutchinson v. Green, 6 Fed. 833, 836-839; Hamil. ton v. Chouteau, 6 Fed. 339; Heidritter v. Elizabeth Oil-cloth Co., 112 it will not tolerate interference by a State court with property over which it has taken jurisdiction.2 It has been said that "the forbearance which courts of coordinate jurisdiction, administered under a single system, exercise toward each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent and although they co-exist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same place; and when one takes into its jurisdiction a specific thing, that is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. " 3 "This rule, in its application to Federal and State courts, being the outgrowth of necessity, is a principle of right and of law, which leaves nothing to the discretion of a court, and may not be varied to suit the convenience of litigants." 4 "When a court of competent jurisdiction has, by appropriate proceedings, taken property into its possession through its offices, the property is thereby withdrawn from the jurisdiction of all other courts. The latter courts, though of concurrent jurisdiction, are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it. For the purpose U. S. 294, 28 L. ed. 729; McKinney 2 Freeman v. Howe, 24 How. 450, 390; In re Tyler, 149 U. S. 164, 186, 37 L. ed. 689, 696; White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183. 3 Mr. Justice Matthews in Covell v. Heyman, 111 U. S. 176, 182, 28 L. ed. 390, 392; approved in Re Tyler, 149 U. S. 164, 186, 37 L. ed. 689, 696, per Fuller, C. J. 4 Thayer, J., in Merritt v. Am. Steel Barge Co., 79 Fed. 228, 231. of avoiding injustice which otherwise might result, a court during the continuance of its possession has, as incident thereto and as ancillary to the suit in which the possession was acquired, jurisdiction to hear and determine all questions respecting the title, the possession or the control of the property. In the courts of the United States this incidental and ancillary jurisdiction exists, although in the subordinate suit there is no jurisdiction arising out of diversity of citizenship or the nature of the controversy. Those principles are of general application and not peculiar to the relation of the courts of the United States to the courts of the States; they are, however, of especial importance with respect to the relations of those courts, which exercise independent jurisdiction in the same territory, often over the same property, persons, and controversies; they are not based upon any supposed superiority of one court over the others, but serve to prevent a conflict over the possession of property, which would be unseemly and subversive of justice; and have been applied by this court in many cases," some of which are cited, "sometimes in favor of the jurisdiction of the courts of the States and sometimes in favor of the jurisdiction of the courts of the United States, but always, it is believed, impartially and with a spirit of respect for the just authority of the States of the Union." This is a general rule of comity, which usually prevails between courts of the same State.6 Even where the custody of the State court has been acquired through fraud, the Federal court will usually not interfere so long as the former retains its hold upon the property. An objection founded upon this rule does not put the jurisdiction of the court at issue so that the question can be certified immediately to the Supreme Court. It has been held that after the trial of an action at common law it is too late to raise this objec Mr. Justice Moody in Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 378, 385. O'Mahoney v. Belmont, 62 N. Y. 133, 149; Milwaukee R. R. Co. v. Milwaukee & Minnesota R. R. Co., Wis. 165, 88 Am. Dec. 735. Thayer. J., in Merritt v. Amer 20 ican Steel Barge Co., 79 Fed. 228, 231. 8 Attleborough Nat. Bank v. N. W. Mfg. & C. Co., 28 Fed. 113; Louisville Tr. Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, overruling Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660. tion to the jurisdiction. But where the trustee elected by the creditors of an insolvent had failed to claim property until after a levy thereupon under a Federal judgment, on his intervention a decree was entered setting aside the levy, upon his payment of the costs of the same and filing an order of the State court authorizing him to take possession.10 14 This doctrine does not prevent the removal to the Federal court, in a proper case, of a suit in which a State court has appointed a receiver 11 or the removal of a suit by such receiver, 12 nor a suit in one court against a corporation over the property of which another court has appointed a receiver; 13 nor the allowance of an equitable set-off against the judgment of another court; nor the removal of a suit in which a State Court has taken property into its possession under a common law writ; nor a suit to set aside a mortgage, which the mortgagee claims to be a valid lien upon a fund in the possession of a Federal court of bankruptcy.16 15 It was recently said by the Supreme Court of the United States, that "the declaration of a lien on the property is a step toward the invasion of its possession, which we have held to be beyond the jurisdiction of the State court." 17 Before that decision, it 9 Gilman v. Perkins, 7 Fed. 887. See Erwin v. Lowry, 7 How. 172, 12 L. ed. 655; Mo. Pac. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536. 10 Geilinger v. Philippi, 133 U. S. 246, 257, 33 L. ed. 614, 617, infra, § 53. 11 In re Iowa & Minn. Constr. Co., 10 Fed. 401. Where, however, all the property of a foreign corporation had been placed in the hands of a receiver appointed by the State court, the Federal court said, that a case instituted by attachment, which had been removed thereto, should be remanded. Goldberg, Bowen & Co. v. German Ins. Co., 152 Fed. 831, 834. ' 12 Porter v. F. M. Davies & Co., C. C. A., 223 Fed. 465. 13 Chicago, R. I. & P. Ry. Co. v. Union Pac. R. Co., C. C. A., 254 14 Northwestern Port Huron Co. v. Babcock, C. C. A., 223 Fed. 479. 15 Kern v. Huidekoper, 103 U. S. 485, 491, 492, 26 L. ed. 354, 356, 357. 16 Frank v. Vollkommer, 205 U. S. 521, 51 L. ed. 911, in which the author was counsel. 17 Wabash Railroad Co. v. Adelbert College, 208 U. S. 609, 611, 52 L. ed. 642, 643, s. c., 208 U. S. 38, 52 L. ed. 79; City of New Orleans v. Howard, C. C. A., 160 Fed. 393, a partition suit. See Security Trust Co. v. Union Trust Co., 134 Fed. 301; Lang v. Choctaw, Oklahoma & Gulf R. Co., C. C. A., 160 Fed. 355; Oppenheimer v. San Antonio Land & Irr. Co., C. C. A., 246 Fed. 934. was held that the doctrine did not prevent a suit to foreclose a mortgage, or to establish a lien, upon property in a State court's custody; 18 provided that no sale was ordered until the proceedings in the State court were terminated; 19 and that neither the sheriff, nor, without the permission of the court, a State receiver was a necessary party to the suit; 20 that a Federal court may foreclose a mortgage upon property, held by a receiver appointed by a State court, in a suit to which the mortgagee was not a party, and can then determine the claim of the holders of receiver's certificates issued under the order of the State court to a preference over the mortgage; 21 that a State court may foreclose an attorney's lien upon a cause of action after the removal of the case to the Federal court, subsequent to a settlement between the parties; 22 that a State court may entertain proceedings to condemn land, pending a suit in equity in a Federal court for an injunction against a trespass upon the same by the respondent in the condemnation proceedings, or, in the alternative, for the payment of its value; 23 or a suit to determine the ownership of land pending a proceeding in a Federal court to condemn the property for public purposes; 24 that a proceeding in a State court for a writ of assistance, under a foreclosure decree of sale, does not operate as a bar to an action of ejectment 146. Contra, Cochran v. Pittsburg, S. & N. R. Co., 158 Fed. 549; Cohen v. Solomon, 66 Fed. 411; Hardin v. Union Tr. Co. of Philadelphia, Pa., C. C. A., 191 Fed. 152. 19 Wheelwright v. St. Louis, N. O. & O. C. & T. Co., 50 Fed. 709, 711. But see Erwin v. Lowry, 7 How. 172, 12 L. ed. 20 Porter v. Sabin, 149 U. S. 473, 37 L. ed. 815. 21 Metropolitan Trust Co. v. Lake Cities El. Ry. Co., 100 Fed. 897. Infra, $ 314. 22 Oishei v. Pennsylvania R. R. Co., 101 App. Div. (N. Y.) 473. 23 Benjamon v. Brooklyn Union El. R. Co., 120 Fed. 428. 24 U. S. v. Eisenbeis, C. C. A., 112 Fed. 190. |