the other hand, if the proceedings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding, and, according to the doctrine laid down in Gaines v. Fuentes, 60 the case might be within the cognizance of the Federal courts. The distinction between the two classes of cases may be somewhat nice, but it may be affirmed to exist. In the one class there would be a mere revision of errors and irregularities, or of the legality and correctness of the judgments and decrees of the State courts, and in the other class the investigation of a new case arising upon new facts, although having relation to the validity of an actual judgment or decree, or the party's right to claim any benefit by reason thereof." 61

A suit to make the judgment or decree of a State court the judgment or decree, respectively, of the Federal court can be maintained at common law 62 and in equity.63 The Federal court may take jurisdiction of a creditor's bill to enforce a judgment of the State court in the same district.64 Proceedings supplementary to execution under the judgment of a State court authorized by State statutes against a judgment debtor or third persons cannot be instituted in or removed to the Federal courts; although a creditor's bill may be.65 A petition, after judg ment in a State court, by plaintiff in ejectment to have the defendant's damages allowed to him, is a mere incident to the ejectment suit and the Federal courts can take no jurisdiction of it.66 It has been held that a bill cannot be maintained to

60 92 U. S. 10, 23 L. ed. 524; Cf. Arrowsmith v. Gleason, 129 U. S. 86, 32 L. ed. 630; Robb v. Vo, 155 U. S. 13, 39 L. ed. 52; Hatch v. Ferguson, 52 Fed. 833; Davenport v. Moore, 74 Fed. 945; Strand v. Griffith, C. C. A., 144 Fed. 828; Schultz v. Highland Gold Mines Co.. 158 Fed. 337; Union Ry. Co. v. Illinois Cent. R. Co., C. C. A., 207 Fed. 745. But see Travelers' Protective Ass'n v. Gilbert, C. C. A., 55 L.R.A. 538, 111 Fed. 269; Bailey v. Willeford, 126 Fed. 803. As to suits to set aside decrees of naturalization, see infra, § 151b.

61 Barrow v. Hunton, 99 U. S. 80, Glenn, 56 Fed. 372.

62 Barr v. Simpson, Baldwin, 543. 63 See Davis v. Davis, 65 Fed. 380; Collins v. Ashland, 112 Fed. 175.

64 Feidler v. Bartleson, C. C. A., 161 Fed. 30.

65 Webber v. Humphreys, 5 Dill. 223; Poole v. Thatcherdeft, 19 Fed. 49; Buford v. Strother, 3 McCrary, 253; s. c., 10 Fed. 406; Flash v. Dillon, 22 Fed. 1.

66 Chapman v. Barger, 4 Dillon, 587.

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,

67 Furnald v. Glenn, C. C. A., 64 Fed. 49.

68 Cabaniss v. Reco Min. Co., C. C. A., 116 Fed. 318.

69 Campbell v. Golden Cycle Min. Co., 141 Fed. 610, 614, 616, 617.

70 Continental Tr. Co. v. Toledo, St. L. & K. C. R. Co., 82 Fed. 642, 645, per Taft, J.

71 Richardson v. Loree, 94 Fed. 375. But see infra, $329a.

$ 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; Hub. hard 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; Hamilton 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." 8 "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 v. Landon, C. C. A., 209 Fed. 300; U. S. v. Marrin, 227 Fed. 314. But see Dwight v. Central Vermont R. Co., 9 Fed. 785.

2 Freeman v. Howe, 24 How. 450, 16 L. ed. 749; Heidritter v. Elizabeth Oil-cloth Co., 112 U. S. 294, 28 L. ed. 729; Sharon v. Terry, 1 L.R.A. 572, 36 Fed. 337; Covell v. Heyman, 111 U. S. 176, 28 L. ed.

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.8 It has been held that after the trial of an action at common law it is too late to raise this objec

5 Mr. Justice Moody in Wabash Railroad Co. v. Adelbert College, 208 U. S. 38, 53, 52 L. ed. 378, 385. 6 O'Mahoney v. Belmont, 62 N. Y. 133, 149; Milwaukee R. R. Co. v. Milwaukee & Minnesota R. R. Co., 20 Wis. 165, 88 Am. Dec. 735. 7 Thayer, J., in Merritt v. Amer

ican Steel Barge Co., 79 Fed. 228, 231.

8 Attleborough Nat. Bank v. N. W. Mfg. & C. Co., 28 Fed. 113; Co. Louisville Tr. 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; 15 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

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
Fed. 235.

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.