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Opinion of the Court.
tion and bond filed by the plaintiff in error, the Farmers' Loan and Trust Company, for removal of the cause to the Circuit Court of the United States, and whether the Lake Street Elevated Railroad Company, the American Trust and Savings Bank and the Northern Trust Company, by appearing in the Circuit Court, by moving to remand, by demurring to the bill, after such motion had been overruled, and by appealing to the Circuit Court of Appeals, were estopped from proceeding in the state court, are questions which have been argued at length before us, but which, for reasons presently to be stated, we have not found it necessary to decide.
Apart from those questions, the principal matters in dispute are the legal competency of the Farmers' Loan and Trust Company to act as trustee under the mortgage, and whether, in view of the controversy between the two sets of bondholders in regard to the right and expediency of a foreclosure proceeding, the Farmers' Loan and Trust Company can proceed to enforce the provisions of the mortgage. And these are matters which are necessarily involved, and can be properly raised and determined in the Circuit Court of the United States whose jurisdiction had attached by the filing of the bill of foreclosure before the commencement of the suit in the state court.
The contention that the jurisdiction of the state court first attached because, although the suit therein was not commenced till after the commencement of the suit in the Federal court, the summons issued by the state court was served before the service of the writ of subpæna issued by the Federal court, is not well founded.
A suit in equity is commenced by filing a bill of complaint. Story's Equity Pleading, sec. 7, fourth edition.
Such is also the rule by statute in Illinois. Rev. Stats. Illinois, 1874, c. 22; Hodgen v. Guttery, 58 Illinois, 431.
It is true that in applying the doctrine of lis pendens to the case of a third person who is a bona fide purchaser, notice is held to begin from the date of service of the subpoena and not from the filing of the bill. Miller v. Sherry, 2 Wall. 237, 250; 2 Maddock's Ch. Pr. 323; Haughwout v. Murphy, 22 N. J. Eq. 536, 545; Grant v. Bennett, 96 Illinois, 513.
Opinion of the Court.
But here no question is presented relating to rights acquired by any third person after the commencernent of the suit and before the service of process on the defendants. As between the immediate parties, in a proceeding in rem, jurisdiction must be regarded as attaching when the bill is filed and process bus issued, and where, as was the case here, the process is subsequently duly served, in accordance with the rules of practice of the court.
The defendants could not defeat jurisdiction thus acquired, and supplant the case, by bringing suit in another court and procuring an ex parte injunction seeking to restrain the service of process already issued.
As, then, the bill of foreclosure had been filed in the Circuit Court of the United States, and the jurisdiction of that court had thus attached before the commencement of the suit in the state court, it follows upon principle and authority that it was. not competent for the State court to interfere by injunction or otherwise with the proceedings in the Federal court.
The possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of coördinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons.
Nor is this rule restricted in its application to cases where property has been actually seized under judicial process before a second suit is instituted in another court, but it often applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts or liquidate insolvent estates, and in suits of a similar nature where, in the progress of the litigation, the court may be compelled to assume the possession and control of the property to be affected. The rule has been declared to be of especial importance in its application to Federal and state courts. Peck v. Jenne88, 7 How. 612; Freeman v. Howe, 24 How. 450; Moran v. Sturges, 154 U. S. 256; Central Bank v. Stevens, 169 U. S. 432; Harkrader v. Wadley, 172 U. S. 148.
Opinion of the Court.
We think that this salutary rule is applicable to the present
The bill filed in the Federal court looked to the enforcement of the trusts declared in the mortgage, the control of the railroad through a receiver, the sale of the railroad, and the final distribution of the assets of the company. Such a proceeding necessarily involves the right of the complainant trustee to act as such, and the determination of the controversy in respect to the ownership of the bonds and to the power of a majority of the bondholders, by an agreement with the stockholders, to dispense with an enforcement of the provisions of the mortgage by judicial proceedings. These questions are not for our consideration, unless and until they are brought before us on appeal from a final decree of the court whose jurisdiction was first legally invoked to determine them.
Our conclusion is that the Superior Court of Cook County erred in its decree perpetually enjoining and restraining the Farmers' Loan and Trust Company, the plaintiff in error, from proceeding with or prosecuting the said foreclosure suit in the Circuit Court of the United States, and froin acting in any manner whatsoever under and by virtue of the terms, provisions and conditions of the said mortgage; that the Appellate Court of the First District of Illinois erred in affirming said decree, and that the Supreme Court of Illinois erred in affirming the judgment of the said Appellate Court. Accordingly, the judgment of the Supreme Court of Illinois
is reversed, and the cause is remanded to that court for further proceedings not inconsistent with this opinion.
Opinion of the Court.
CARMICHAEL V. EBERLE.
ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE TERRITORY
OF NEW MEXICO.
No. 166. Submitted March 5, 1900. - Decided March 26, 1900.
In the light of the various orders of the court below, this court holds that
a rehearing was not granted in this case, but that the motion for rehearing was permitted to be argued, and as that was heard before four of the judges of the court, and there was an equal division, it was denied; and, as the judgment of reversal was not a final judgment, the appeal must be dismissed.
The statement of the case is in the opinion of the court.
Mr. William B. Childers for plaintiffs in error and appellants.
Mr. T. B. Catron for defendant in error and appellee.
MR. CHIEF JUSTICE Euller delivered the opinion of the court.
This was an action in ejectment brought in the district court for the county of Socorro, in the Territory of New Mexico, which resulted in judgment against one of the defendants and in favor of the other defendants, whereupon Eberle, plaintiff below, carried the case on writ of error to the Supreme Court of the Territory.
At the July term, 1895, of that court, and on October 16, the following judgment was entered : “This cause having been argued by counsel and submitted to and taken under advisement by the court upon a former day of the present term, the court, being now sufficiently advised in the premises, announces its decision by Associate Justice Collier, Chief Justice Smith concurring, Associate Justice Laughlin dissenting, reversing the judgment of the court below, for reasons stated in the opinion of the court on file. It is therefore considered and adjudged by
Opinion of the Court.
the court that the judgment in this cause of the district court in and for the county of Socorro, whence this cause came into this court, be, and the same hereby is, reversed, and that this cause be, and the same hereby is, remanded to said district court, with directions to grant a new trial thereof. It is further considered and adjudged by the court that the said plaintiff in error do bave and recover of said defendants in error his costs in this behalf expended, as well in the court below as in this court expended, to be taxed, and that execution issue therefor.”
December 17, 1895, defendants in error filed a motion for rehearing, pending which the court adjourned to court in course. At July term, 1896, and on August 11, this order was entered: “This cause coming on for hearing upon the motion of said defendants in error, heretofore filed herein, for a rehearing of said cause, the same is argued by H. L. Pickett, Esq., attorney for said defendants in error, and by T. B. Catron, Esq., attorney for said plaintiff in error, and submitted to the court, and the court not being sufficiently advised in the premises, takes the same under advisement."
December 18, 1896, judgment was rendered as follows: “This cause having been argued by counsel and submitted to and taken under advisement by the court on a former day of the present term, upon the motion of the said defendants in error for a rehearing of said cause granted herein at a former term, the court, being now sufficiently advised in the premises, announces its decision by Associate Justice Collier, Chief Justice Smith concurring, Associate Justices Laughlin and Bantz dissenting, reversing the judgment of the court below, and remanding said cause for a new trial for reasons stated in the opinion of the court on file herein. It is therefore considered and adjudged by the court that the judgment of the district court in this cause in and for the county of Socorro, whence this cause came into this court, be and the same is hereby reversed, and that this cause be and the same is hereby remanded to said district court, with directions to grant a new trial thereof. It is further considered and adjudged that said plaintiff in error do have and recover of said defendants in error his costs in this behalf expended, as well in the court below as in