Citation Numbers: 180 A. 395, 118 N.J. Eq. 527
Judges: DAVIS, V.C.
Filed Date: 8/6/1935
Status: Precedential
Modified Date: 7/5/2016
At the final hearing of this cause before Vice-Chancellor Leaming, on complainant's bill seeking to compel defendant to remove certain railroad tracks theretofore maintained by the defendant on complainant's pier property in the county of Camden, the vice-chancellor found that a dispute as to legal title to thelocus in quo rendered necessary a verdict at law in order to settle the question of legal title before a final decree could be made herein, the bill of complaint to be retained in theinterim. No order based on the vice-chancellor's conclusions has ever been entered; apparently neither party sought nor procured such an order, although this court undoubtedly had the power not only to frame the issue to be tried at law, but also to lay the venue, if the exercise of that power had been sought. *Page 528
Thereafter the complainant instituted an ejectment suit in the United States district court for the district of New Jersey and was there successful; on appeal to the United States circuit court of appeals for the third circuit, the judgment of the court below was affirmed. A writ of possession will issue on said affirmance, if indeed it has not already issued. In addition to this ejectment suit, complainant also instituted a separate action in the United States district court for the district of New Jersey for mesne profits, which suit is still pending.
At this point, the defendant filed the present petition in which he asks this court to enjoin the complainant from proceeding with the suit for mesne profits and from executing a writ of possession in the ejectment suit; an order to show cause was issued thereon with ad interim restraint.
I think the right of this court to restrain the execution of final process of a federal court is denied by the decision of Chancellor (then Vice-Chancellor) Walker, in Smith v. Reed,
In any event, it is a serious question whether ejectment accomplishes the end sought to be obtained by Vice-Chancellor *Page 529 Leaming, but I do not feel called upon to say what would be the decision herein if the verdict at law had been certified to this court for the purpose of completing the final hearing.
So far as the ejectment suit is concerned, therefore, the petition will be dismissed for want of jurisdiction.
As to the suit in the federal court for mesne profits, a somewhat different situation obtains; although the cause has not proceeded to final judgment, and the parties are within the jurisdiction of this court, I can see no sufficient justification for interfering with that suit; the issues there presented are not raised here, nor indeed would this court adjudicate those issues if they were raised here. And no special equity such as that laid hold of by Vice-Chancellor Bergen in Shaw v. Frey,