Conrad v. Gartley ( 1956 )

SCHNACKENBERG, Circuit Judge

(concurring).

I believe the judgment below should be affirmed because the district court was confronted with the fact that a prior action, involving the same cause of action and between the same parties, was pending in another court. 1 C.J.S., Abatement and Revival, p. 50, § 17. By the petition filed by the cousins in the Howard Superior Court, that court acquired control over the res and thereby obtained prior, and hence exclusive, jurisdiction. When the pendency of that petition was pleaded in the district court action subsequently commenced by plaintiffs, it was the duty of the district court to abate its action. 1 C.J.S., Abatement and Revival, p. 104, § 67(e). It is immaterial that the parties in the two proceedings were reversed. 1 C.J.S. Abatement and Revival, p. 95, § 61. The United States Supreme Court in Kline v. Burke Const. Co., 260 U.S. 226, at page 231, 43 S.Ct. 79, at page 82, 67 L.Ed. 226, quoted from our opinion in Baltimore & Ohio R. R. Co. v. Wabash R. R. Co., 119 F. 678, at page 679, as follows:

"It is settled that, when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted. * * The rule is not only one of comity, to prevent unseemly conflicts between courts whose jurisdiction embraces the same subject and persons, but between state courts and those of the United States it is something more. ‘It is a principle of right and law, and therefore of necessity. It leaves nothing to discretion or mere convenience.’ Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. The rule is not limited to cases where property has actually been seized under judicial process before a second suit is instituted in another court, but it applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in all suits of a like nature. Farmers’ Loan & Trust Co. [of New York] v. Lake Street El. R. Co., 177 U.S. 51, 20 S.Ct. 564, 44 L.Ed. 667; Merritt v. [American] Steel Barge Co., [8 Cir.], 79 F. 228, 24 C.C.A. 530, 49 U.S.App. 85. The rule is limited to actions which deal either actually or potentially with specific property or objects. Where a suit is strictly in personam, in which nothing more than a personal judgment is sought, there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined; and this because it neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with law. Stanton v. Embrey, 93 U.S. 548,’ ” [23 L.Ed. 983].

Here the state court petition is a proceeding in rem, as is also the district court action. The parties are the same, As a matter of comity and as a matter of necessity, the latter action should abate. Therefore the district court’s order having that effect is properly affirmed.