IEDERAL REPORTER. MARTIN
BALDWIN and others.
OF OAUSE IN STATE COURT.
'(}i;rcuit Court, D. Val,ifornia.' February 4,1884./
JURISDICTION OF FEDERAL
Penuing a suit in a state court for the partition of lanet, a court of the United States having concurrent jurisdiction may refuse to entertain a snit between the same parties or their successors hy purchase, pendente lite, when the issues and interests involved in the two calles are the same.
The facts'are stated in the opinion. W. S. Woods, for complainant. Latiner &; Morrow, for defendants. SAWYER, J., (orally.) This is a suit for partition of a ranch, Camilo Martin bringing the suit against Baldwin and Garvey for partition, alleging that he owns a certain portion, and that Baldwin and Garvey own the remaining portions. The plea sets up that W. and F. W. Temple commenced suit in the district court for the district of Los Angeles county, against Baldwin, one of the defend,ants in this suit, and several other defendants named, being the other at the time, for a partition of this same ratlCh; that said suit is still pending in the superior court for the county of Los Angeles; that it embraces the identical object and subject-matter involved in this suit; that since the commencement of that suit, the plaintiff in this proceeding, Camilo Martin, has purchased the interest of the Temples, and now owns the Same interest that the Temples did; that (j:arvey has purchased the interest of some of the other defendants in the suit; and that Camilo Martin, the complainant in this suit, and Baldwin have also purchased the remaining interest of the other defendants .in the suit, so that now Martin, Garvey, and Baldwin are owners of the entire ranch; that though there are other parties to the former .suit for partition, yet the parties to the present suit have succeeded to their interests, pendente lite, and are now the only parties in interest; that the same interests flore now involved, the parties to this suit having purchased in subsequently to thl:l bringing of the former suit with and the filing of notice lis pendens, and are, those other parties; that this suit involves precisely the same questions that the former suit does; and that the judgment or the decree in the former suit would be binding upon all the world. Section 1908 of the Code of Civil Procedure says:
"The effect of a jUdgment or final order in an action or special proceeding before a court or judge of this state, or of the United States, having jurisdic.. tion to pronounce the judgment or order, is as follows: ... ... ... (2) In other cases, the jUdgment or order is, in respect to the matter directly ad· judged conclusive between the parties and their successors in interest by title, subsequent to the commencement of the action or special proceeding, lit· igating for the same thing, und.;r the same title, and in the same capacity."
Precisely the same relief is to be had in one suit as in the other, and the judgment in the first suit would be binding upon all the pa.r-
ties. It is true that these are different jurisdictions, that is to say, one is the jurisdiction of the United States and the other of. the state court, and in ordinary cases the pending of the suit in one of thesf> tribunals would not abate a suit pending in another. But these suits are for partition of the same land, and the two courts might reach a different result and there be no error in either proceeding upon which the judgment could be reversed. The parties would find themselves in a very embarrassing position if the judgments ,should be different in the different courts and both of them be valid. The jurisdiction of the two courts is concurrent. The proceeding is in the nature of a proceeding in rem. Where two courts have concurrent jurisdiction in a proceeding in rem, and one court obtains possession of the res, ordinarily it would be entitled to proceed to judgment without interference from the other cqurt. Certainly, one court would not be entitled to take the res out of the possession of another court of concurrent jurisdiction, which, in the exercise of its lawful authority, has obtained the actual, physical of the thing in suit.' It to me that the same principle should apply to a suit for partition. The action is local, and the courts, having concurrent jurisdiction, must necessarily exercise the same territorial jurisdiotion, although the conrts may be courts of different sovereignties. The prooeeding' being in the nature of a proceeding in rem, the court first obtaining legal possession or control of the res ought, by comitya.t least, if not otherwise, to be permitted to proceed to an adjudication without interferenceby the other court. As a matter of sound legal discretion and comity, I think the court is authorized to abate the suit in this court on the ground of the pending of the other suit in the state court, even if the party pleading the matter of abatement is not entitled to have it abated as a matter of strict legal right. The complainant cannot complain, for he purchased pending the former suit, and the of lis pendens, filed in pursuance of the statute, informed him of the condition of the lands. He purchased into a lawsuit in regard to lands already in the legal control of another court. This court, at the commencement of that suit, had no jurisdiction whatever of the case,-the parties being then all oitizens of California,....,..and complainant took his interest cum onere. Let the plea be sustained.
ana others -!'.'MANCHESTER & K. R. R.
(Circuit VoU'I't, D. N6'IJJ HamjJ8hi'r6.
February 14, 1884.)
.l.UOURTB 011' CONCURRENT JURISDICTION-JURISDICTION ACTUALLY ACQUIRED.
Of two courts having concurrent of any matter, the One whose jurisdiction first attaches acquires exclusive control of all controversies respecting it involving SUbstantially the same interests.
SAME-FoRECLOSURE OF MOR'rGAGE 01'1' HAILROAD.
Accordingly, where the supreme court of New Hampshire decreed the foreclosure of a deed of trust and mortgage of a railroad, and the property was actually sold, hef,d, that the circuit court of the United States could not entertain a biU to enforce the operation of the road by trustees for the benefit of its stockholders, although the bill was flIed before the sale, and the sale when made was declared to be subject to the result of the suit in the circuit court. The pO!lSession of a receiver is the possession of the court appointing him, and cannot be divested by a court of co"ordino.te jurisdiction.
RECEIVER-POSSESSION OF THE COURT.
The admissibility of copies of a recor(1 in evidence does not render the record itself inadmissib,le.
In Equity. F. A. Brooks, for cotnplaiuants. S. N. Bell, Briggs & Hull_Wm. E. Ohandler, and Wm. L. FOBter, for defendants. CLARK, J. The Manchester & Keene Railroad was incorporated by the legislature of New Hampsbire,July 16, 1864. On the twentyninth of May, 1878, it issued its bonds to the amount of $500,000, bearing date July 1,1876, and payable July 1, 1896, with 6 per cent. interest, semi-annually. 'fa- secure the paymeQ.t and interest of these bonds, it mortgaged its road and franchises, and all the property connected therewith, to CorneliusV. Dearborn, J. Wilson White, and FarnuI1l F.' Lane, trustees. By t:Qis mortgage it was stipulated that if said railroad failed for a period of six months to pay the interest of said bonds, upon a request of a majority of the holders, the trustees might declare the principal of the bonds to be payable forthwith, and make demand therefor, and for arrears of interest, and uponfailnre of payment of the same, within 10' days after demand, might sell the railroad, property, and franchise- by public auction, and make due conveyance of the same. The railroad made default in the payment of its interest, and on the twenty-ninth day of April, 1880, Samuel W. Hale, Henry Colony, John Y. Scruton, and William P. Frye filed a bill of complaint in equity in the supreme court of New Hampshire against the Nashua & Lowell Railroad, the Manchester & Keene Railroad, and Dearborn, White, and Lane, trustees. The bill alleged that the complainants were bondholders of the Manchester & Keene road, and, among otber things, that by reason of tbe want of care and proper management of the directors and trustees, the interest of said bonds had become overdue, and been unpaid for more than two years, though demanded, and the road itself was unused, neglected_ and rapidly go-