FRIEDMAN t. ISRAEL.
as are in this case come before that court. The order asked for does not contemplate the taking of property by the United States court out of or away from the jurisdiction of the state court, nor will its execution bring about a conflict of jurisdiction. Such a condition, in fact or in law, could not come about unless the property now in the hands of the sheriff is in the possession of the law. If we believed the property held by him is now in the possession of the law, that it is held by the sheriff under an operative writ or under competent authority, we would go no further in this matter. The reading of the act of 1875 shows clear enough what its authors meant, and we must discharge our duty in accordance with its provisions. In Kern v. Huidekoper, 103 U. S. 485, the court, having cited a. number of cases, said:
"Those cases decide that property held by an officer of one court, by virtue of process issued in a cause pending therein, cannot be taken from his possession by the officer of another court of concurrent jurisdiction, upon process in another case pending in the latter court. But here there is but one case. It is brought in the state court. It falls within the terms of the act of congress for the removal of causes. When the prerequisites for removal have been performed, the paramount law of the land says that the case shall lJe removed, and the case and the res both go to federal court. '" '" '" ·When the removal is accomplished, the state court is left without any case, authority, or process by which it can retain the res. '" '" '" The suit, and the subject-matter of the suit, are both transferred to the federal court by the same act of removal, or, when a bond for the delivery of the property has been taken, as in this case, the bond, as the representative of the property, is transferred with the suit. There is no interference with the rightful jurisdiction of the state court, and no divesting from its possession of property , which it has the right to retain."
Let it be accepted fully, that the suit in which the attachment was issued is no longer a suit pending in the state court, but that there is but one suit,and it is in this court, and the difficulties as to a conflict of jurisdiction cease to be serious. Under the operation of the act of 1875 there is but one suit, and that is now all in this court. It can hardly be seriously disputed that, when a case is rightfully removed to this court, the circuit judge can do or should do all that the state judge can do or should do if the case had remained to the end in the state court, and it follows that the federal judge possesses all facilities and powers which the state court could have exercised to disBolve the attachment if wrongfully issued, or to maintain and fix, by judgment, all the rights of the parties in the removed suit. Otherwise the suit is not removed. This view cannot be enforced unless this court has the res in its possession. Again, it is contended that the defendant, seeking relief against the refusal of the state court to allow the removal of his case, must look, on a writ of error, to the appellate power of the supreme court of the United States. Whether congress can or cannot give the circuit courts of the United States power to issue writs of injunction, writs of prohibition, or processes for contempt when the state court
goes on with the trial of the case, need not now be considered. It is enough to say that congress has not given to the United States courts such a power. But no such power is required to make effectual the order herein sought by defendant; and it does not follow because such writs cannot issue, that the res in the removal suit cannot be brought to this court, and subjected to its jurisdiction just as fully as it wonld have been had the suit been dismissed in the state court, and then filed in this court. The end can be attained without invoking the appellate power of the supreme court; and there is no reason why a method or process, not prohibited by law, should not be now adopted, by which the act of 1875 can be made to attain the purpose its authors had in view whAn it became the supreme law of the land. It seems that the purpose of the mover for the order might be effected by taking up the case from the state court, on writ of error, to the supreme court; but none of the cases cited, directly or indirectly, seem to forbid the issuance of the order prayed for. If the defendant, as has been freqnently held, need not stay longer or appear at all in the state court after the case is rightfnlly removed, why should he, in seeking for relief from the refusal of the state court to allow his suit to be removed, be limited to an effort to have the error of the state court corrected by the United States supreme court? If there was no jurisdiction in the state when the petition and bond were filed, why should the defendant go to the supreme court to correct an error committed by the state court after that court had lost its jurisdictional power to do anything in the case? By the paramount law of the land, the state court is directed, when certain formalities have been complied with, to give up to the United States court all the jurisdiction it had when the suit was removed. By operation of the supreme law, the state court is shorn of its powers to do anything further in the case, and not a vestige of the suit, or its subject-matter, rightfully remains in the state court. Kern v.Huidekoper, 103 U. S. 485; Ches!lpeake et O. R. Co. v. White, 111 U. S. 134; S. C. 4 Sup. Ct. Rep. 353; Insurance Co. v. Dunn, 19 Wall. 223. True, the state court has the power, whatever may be the decision of this court, physically to go on now and try the case; but its judicial power to continue its possession of the res, through the hands of its sheriff, is at an end, and his possession is not the possession of the law. The writ under which he seized the res is dead, and in his hands it is a shadow, and he cannot interpose it between himself, as an officer of the state court, and the marshal, when he demands the property. Insurance Co. v. Morse, 20 Wall. 445; Railroad Co. v. Mississippi, 102 U. S. 141. This court's views may not be in accord with the opinion that the supreme court may announce should this case go up; but its decision, in the nature of things, must be the law for the case until the appellate court holds differently. For the purpose of passing upon the rule now being tried, this coud has the fullest jurisdiction to say that