Empire Trust Co. v. Brooks

WALKER, Circuit Judge

(dissenting). I do not concur in the conclusion last stated in the foregoing opinion. It seems to me that the withholding from the state court of the possession of the property in question has the affect of interfering with that court’s first acquired jurisdiction, as its possession of that property was necessary to enable it to exercise that jurisdiction. The conclusion that this is permissible is not reconcilable with the proposition that “as between two courts of concurrent and co-ordinate jurisdiction, having like jurisdiction over the subject-matter in controversy, the court which first obtains jurisdiction is entitled to retain it without interference, and cannot be deprived of its right to do so because it may not have first obtained physical possession of the property in dispute.” Moran v. Sturges, 154 U. S. 256, 283-284 , 14 Sup. Ct. 1019, 1028 [ 38 L. Ed. 981 ]. The effect of the decision iñ the -case cited was that the proposition just stated by quoting from the opinion rendered in that case was not applicable therein, because that was the case of the exercise of a jurisdiction which was exclusive, not being possessed by the court whose jurisdiction was first invoked, that court not being vested with the admiralty jurisdiction, which was exercised by the court which first took possession of the property in question. In the instant case it is not denied that the state court had jurisdiction, which was exercisable in the suit first brought in it, to marshal the assets which that court was asked to take possession of by its receiver, to ascertain all claims to or against those assets, including liens or charges thereon, and to make distribution to all parties in interest according to their priorities. Such a jurisdiction includes the power to require a mortgagee of the whole or a part of those assets to intervene in that suit and assert his claim therein. The suit subsequently brought in the federal court invoked the exercise by that court, not of -a paramount or exclusive jurisdiction, but of a jurisdiction which it had concurrently with the state court. I have not been convinced that the latter court properly can be deprived of its right to retain its first-acquired jurisdiction because another court, the concurrent and co-ordinate jurisdiction of which subsequently was invoked, first obtained physical possession of the property in dispute. 1 do not understand that the rule above stated is subject to an exception which renders it inapplicable when the suitor in the subsequently brought suit, in which possession is acquired, asserts a claim to or against the property in question which the court to which he resorts regards as being entitled to priority over the claim previously asserted by another in another court; the subsequently asserted claim being one which is cognizable by the court whose jurisdiction first attached, and in the suit which was the first one that invoked a jurisdiction the exercise of which required possession of the property in question.