Howlett v. Central Carolina Land & Imp. Co.

• Decision Date: 19 May 1893
• Citation: 56 F. 161
• Parties: HOWLETT v. CENTRAL CAROLINA LAND & IMP. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

56 F. 161

HOWLETT v. CENTRAL CAROLINA LAND & IMP. CO. et al.

United States Circuit Court, D. South Carolina.

May 19, 1893

Knox Livingston, for complainant.

C. S Nettles, Moise & Lee, and Edward O. Woods, for defendants.

SIMONTON District Judge.

On the 20th of April last the bill,--a creditors' bill--was filed in this court, Knox Livingston, Esq., signing the bill as attorney, praying, among other things, the appointment of a receiver. The ordinary rule to show cause was issued, with restraining order, and a temporary receiver was appointed. The rule was made returnable on 17th May current. The corporation defendant answered on 13th May, 1893, by A. A Howlett, its president. Subpoenas ad respondendum were issued, but were never served on the other defendants judgment creditors, of the corporation. On the day fixed for the return to the rule, Williams and Turley, named as defendants in the bill, appeared, and with them counsel for the Simonds National Bank and the Bank of Sumter, who are stated in the bill to be judgment creditors of the defendant corporation, but who were not made parties defendant; and also other counsel representing parties who claim to be creditors. They show cause under the rule as follows: On 30th March, 1893, a summons was duly issued out of the court of common pleas for Sumter county in the state of South Carolina, in the name of the Simonds National Bank and the Bank of Sumter against the Central Land & Improvement Company, whereby an action was commenced against said company in the nature of a creditors' bill for the settlement of its affairs; that said summons was lodged in the office of the sheriff of the said county, and was personally served on A. A. Howlett, its president; that some four days afterwards Knox Livingston, Esq., appeared for said defendant, and demanded a copy of the complaint; that the complaint was filed, and a copy thereof duly served on him by mail on 22d April, 1893. They contend that by these proceedings the jurisdiction of the state court attached in this case, and they submit that under these circumstances this court will not interfere.

In South Carolina, civil actions are commenced by the service of a summons. Code Civil Proc. § 148. A copy of the complaint need not be served with the summons. Id. § 151. From the time of the service of the summons in a civil action the court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings. Id. § 160. There can be no doubt that on 30th March, 1893, when the summons was served on the defendant, the state court acquired jurisdiction over the case and all subsequent proceedings therein. The pendency of the action in the state court would not abate this suit, or deprive this court of jurisdiction. Gordon v. Gilfoil, 99 U.S. 178. The matter presents itself to the discretion of the court, and calls upon it to decide whether, after notice of the pendency of proceedings of the same character in the state court, it will not stay its hands. The language of the supreme court in Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, though not bearing directly on this question, throws light upon it:

'The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards 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 law, and therefore of necessity. It leaves nothing to discretion or mere convenience.'

In the leading case of Taylor v. Carryl, 20 How. 597 affirm...