Barber Asphalt Pav. Co. v. Morris, 46.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation132 F. 945
Docket Number46.
PartiesBARBER ASPHALT PAV. CO. v. MORRIS, Judge.
Decision Date24 October 1904

132 F. 945

BARBER ASPHALT PAV. CO.
v.
MORRIS, Judge.

No. 46.

United States Court of Appeals, Eighth Circuit.

October 24, 1904


Syllabus by the Court

The pendency in a state court of a prior action between the same parties for the same cause furnishes no ground for an abatement or for a stay of proceedings in a subsequent action brought by the same plaintiff in a federal court, where no conflict arises between the courts over the custody or dominion of specific property.

Wherever, however, one of the courts secures by proper process the custody or dominion of specific property which it is one of the objects of the suit in the other court to subject to its judgment or decree, the latter action should not be dismissed, but it should be stayed until the proceedings in the court which first obtained jurisdiction of the property are concluded, or ample time for their termination has elapsed.

The jurisdiction of the federal courts may not be limited or impaired by state legislation which confers exclusive jurisdiction of litigation upon state courts or prescribes exclusive methods of invoking that jurisdiction.

Wherever the citizens of a state may secure a trial of their controversies by its courts of general jurisdiction either by original process, or by appeal, or by other proceedings, the citizens of different states may obtain the trial of like controversies between them by some appropriate action in the federal courts.

Section 80 of the charter of Duluth, which provides for appeals from the allowance or rejection of claims against that city to the district court of St. Louis county, Minn., and prohibits the payment of such claims while such appeals are there pending, does not restrict the jurisdiction of the federal courts over claims of citizens of other states, or the power of those courts to enforce their judgments upon such claims, and actions by original process in the federal courts may be maintained in controversies over such claims without presenting them to the city council.

The United States Circuit Court of Appeals have jurisdiction to issue writs of mandamus in the exercise of, and in aid of their appellate jurisdiction.

The test of appellate jurisdiction in the exercise and aid of which the Courts of Appeals may issue writs of mandamus is the existence of that jurisdiction, not its prior invocation. It is the existence of a right to review by a challenge of the final decisions or otherwise in the cases or proceedings to which the application for the writs relate, and not the prior exercise of that right by appeal or by writ of error.

Appeals from the allowance by the city council of Duluth of the claims of a citizen of the state of West Virginia were taken by the city to the district court of St. Louis county, Minn., and the charter of the city prohibited its officers from paying the claims pending the appeals except upon the order of that court. Thereupon the petitioner sued the city upon its claims in the federal court. The judge who was holding that court stayed all proceedings in the case pending in it until the final determination of the appeals in the state court.

Held, this was error, remediless otherwise than by the writ of mandamus. The Court of Appeals has jurisdiction to issue its writ of mandamus, and to command the judge holding the Circuit Court to vacate the [132 F. 946] stay, and to proceed with all convenient speed to try and adjudicate the controversy and to enforce the judgment upon it. Writ accordingly issued.

The Barber Asphalt Paving Company, a corporation of the state of West Virginia, presents its petition to this court for a writ of mandamus to induce the Honorable Page Morris, District Judge holding the Circuit Court for the District of Minnesota, to proceed to the trial and determination of an action at law against the city of Duluth which the petitioner commenced in that court on May 31, 1904. In response to the order to show cause why the mandamus should not be issued the respondent has filed an answer, and by the petition and answer these facts are admitted: In May, 1902, the Barber Company entered into a contract with the city of Duluth to pave one of its streets for the sum of $54,760. Section 80 of the charter of that city provides that the city attorney may, and upon the request of seven taxpayers he must, appeal from the allowance by its common council of any claim exceeding $25, except the claims of employees or officers for wages or salary, to the district court of St. Louis county, which shall thereupon have jurisdiction of the parties and of the subject-matter, and that thereafter no order shall be issued for the payment of any part of the claim thus challenged until a certified copy of the judgment of the district court is filed with the city clerk. The Barber Company paved the street. On August 3, 1903, the mayor and common council of the city ordered the payment to that company of $25,500 on account of labor and material furnished by it under its contract, and the city attorney, at the request of seven taxpayers, appealed from this allowance to the district court of St. Louis county, where this appeal is pending. On October 8, 1903, the mayor and council of the city allowed and ordered the payment to the Barber Company of $8,189 on the same account, and at the request of the same court, where this appeal is also pending. The city charter provides that these appeals shall be placed upon the calendar of the court for trial, that the court may require pleadings, that issues of law shall be summarily heard, and that issues of fact shall be tried as other issues of that character are heard in that court. Orders for pleadings and trials have been made in these appeals, but the Barber Company appeared specially in both and challenged the jurisdiction of the court, and in one failed to plead farther when its objections were overruled. In May, 1903, before the allowance of these appeals, certain taxpayers of the city of Duluth, some of whom subsequently instigated these appeals, brought a suit against that city and the Barber Company in the district court of St. Louis county to enjoin the city from paying anything to the petitioner on account of the work and material furnished by it under its contract. That suit was tried upon its merits, and in May, 1904, that court decided that the complainants were entitled to no relief, but stated in a memorandum filed with the decision that, if they had been diligent, they would have been entitled to an injunction, since, in the opinion of the court, the contract was invalid because there was not a sufficient amount in the permanent revolving fund at the time it was let to warrant its existence. In this state of the case the petitioner brought an action in the United States Circuit Court for the District of Minnesota against the city of Duluth on May 31, 1904, for the sum of $38,316.14, which it alleged was due to it under its contract, and a portion of which had been allowed by the city council and was challenged by the appeals. The city moved the court to stay all proceedings in that action until the trial and final determination of the proceedings pending in the state court, and on July 26, 1904, Judge Morris made an order of the court that all proceedings in that action should be stayed until the final determination of the two pending in the district court of St. Louis county.

Carl Taylor (Jared How, on the brief), for petitioner.

Bert Fesler, for respondent. [132 F. 947]

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, .

The order which the petitioner challenges stays its action in the Circuit Court of the United States until the questions which that action presents shall have been finally determined by the courts of the state. That order is not reviewable by writ of error or by appeal, and the Barber Company applies to this court for its writ of mandamus to direct the judge holding the court below to proceed to the trial of its case.

The plaint of the petitioner is that by the order of the court below it is practically prohibited from a trial and decision by the national courts of a controversy over $38,316.14 between citizens of different states, which is pending in that court, and which involves nothing but the question of the existence and the amount of a simple contract debt. It is unnecessary to the determination of the issues now presented to consider or decide whether or not the district court of St. Louis county had acquired, by means of the appeals, jurisdiction of the subject-matter and of the parties to the action in the federal court when that court ordered all proceedings in the action before it stayed until the final determination of those appeals. If the state court had not acquired such jurisdiction, there was no reason for staying the cause in the federal court. If it had acquired jurisdiction, the order practically prohibits the trial of the controversy in the national courts, and remits its decision to the courts of the state, and the only reason urged in support of it is that the same controversy was pending in the district court of the state, that that court had jurisdiction of the subject-matter and of the parties, and that by the charter of the city its officers were forbidden to pay the claim of the petitioner until that court should so direct. It will accordingly be conceded-- but it is not decided-- that the district court of St. Louis county had acquired jurisdiction by means of the appeals of the parties to the action in the federal court and of the controversy there presented when that action was commenced, and before the order which enjoined its progress was made. It is also conceded for the purposes of this decision, although that question is not decided, that the petitioner might have removed the appeals to the federal court, and that the question here presented...

To continue reading

Request your trial
103 practice notes
  • Brun v. Mann, 2,306.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 7, 1906
    ...' Chicot County v. Sherwood, 148 U.S. 529, 533, 534, 13 Sup.Ct. 695, 37 L.Ed. 546; Barber Asphalt Pav. Co. v. Morris, 66 C.C.A. 55, 59, 60, 132 F. 945, 949, 950, 67 L.R.A. 761; Act Aug. 13, 1888, c. 866, Sec. 1, 25 Stat. 433, 434 (U.S. Comp. St. 1901, p. 508); Davis v. Gray, 16 Wall. 203, 2......
  • Mottolese v. Kaufman, No. 21334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 6, 1949
    ...Co. v. Williams, 1 Cir., 12 F.2d 773; Consumers Gas Co. v. Quinby, 7 Cir., 137 F. 882, 893; Barber Asphalt Paving Co. v. Morris, 8 Cir., 132 F. 945; Defiance Water Co. v. City of Defiance, C.C.Ohio, 100 F. 178.6 Cir., 54 F.2d 1017; Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 2 Cir., 62......
  • Boatmen's Bank of St. Louis v. Fritzlen, 2,081.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 4, 1905
    ...in the state court have been concluded, or ample time for their termination has elapsed. Barber Asphalt Paving Co. v. Morris (C.C.A.) 132 F. 945, 948; Williams v. Neely (C.C.A.) 134 F. 1; Zimmerman v. So Relle, 80 F. 417, 420, 25 C.C.A. 518, 521; Gates v. Bucki, 53 F. 961, 965, 4 C.C.A. 116......
  • Butler Bros. Shoe Co. v. United States Rubber Co., 2,496.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 25, 1907
    ...179, 43 L.Ed. 474; National Surety Co. v. State Bank, 120 F. 593, 603, 56 C.C.A. 657, 61 L.R.A. 394; Barber Asphalt Paving Co. v. Morris, 132 F. 945, 949, 66 C.C.A. 55, 67 L.R.A. 761. But the power of the Circuit Courts of the United States to administer rights and remedies in equity was ve......
  • Request a trial to view additional results
103 cases
  • Brun v. Mann, 2,306.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 7, 1906
    ...' Chicot County v. Sherwood, 148 U.S. 529, 533, 534, 13 Sup.Ct. 695, 37 L.Ed. 546; Barber Asphalt Pav. Co. v. Morris, 66 C.C.A. 55, 59, 60, 132 F. 945, 949, 950, 67 L.R.A. 761; Act Aug. 13, 1888, c. 866, Sec. 1, 25 Stat. 433, 434 (U.S. Comp. St. 1901, p. 508); Davis v. Gray, 16 Wall. 203, 2......
  • Mottolese v. Kaufman, No. 21334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 6, 1949
    ...Co. v. Williams, 1 Cir., 12 F.2d 773; Consumers Gas Co. v. Quinby, 7 Cir., 137 F. 882, 893; Barber Asphalt Paving Co. v. Morris, 8 Cir., 132 F. 945; Defiance Water Co. v. City of Defiance, C.C.Ohio, 100 F. 178.6 Cir., 54 F.2d 1017; Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 2 Cir., 62......
  • Boatmen's Bank of St. Louis v. Fritzlen, 2,081.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 4, 1905
    ...in the state court have been concluded, or ample time for their termination has elapsed. Barber Asphalt Paving Co. v. Morris (C.C.A.) 132 F. 945, 948; Williams v. Neely (C.C.A.) 134 F. 1; Zimmerman v. So Relle, 80 F. 417, 420, 25 C.C.A. 518, 521; Gates v. Bucki, 53 F. 961, 965, 4 C.C.A. 116......
  • Butler Bros. Shoe Co. v. United States Rubber Co., 2,496.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 25, 1907
    ...179, 43 L.Ed. 474; National Surety Co. v. State Bank, 120 F. 593, 603, 56 C.C.A. 657, 61 L.R.A. 394; Barber Asphalt Paving Co. v. Morris, 132 F. 945, 949, 66 C.C.A. 55, 67 L.R.A. 761. But the power of the Circuit Courts of the United States to administer rights and remedies in equity was ve......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT