In re Lasserot

• Decision Date: 12 March 1917
• Docket Number: 2934.
• Parties: In re LASSEROT.
• Court: U.S. Court of Appeals — Ninth Circuit

240 F. 325

In re LASSEROT.

No. 2934.

United States Court of Appeals, Ninth Circuit.

March 12, 1917

On November 8, 1912, Genevieve Lasserot commenced in the superior court of Contra Costa county, Cal., a suit against the People's Water Company to quiet her title to certain real estate from which she alleged she had been wrongfully ejected, and to enjoin the defendant from enforcing a certain judgment which had been rendered against her in a prior action of ejectment, but in which she alleged she had not been served with process. On February 4, 1913, the defendant answered denying the plaintiff's title and asserting title in itself. On May 22, 1914, the case came on for trial and on that day was partly tried, and the trial was continued until May 25th. On May 25th a receiver of the real estate was appointed by consent of the parties with authority to take possession of the real estate and to collect the rentals, who thereafter qualified and took possession. On the same day the plaintiff filed an amended complaint. On August 5, 1914, the defendant filed an answer and a cross-complaint. On November 12, 1915, the court set the cause for trial on certain issues in the cause reserving to the plaintiff the right to a jury trial as to other issues. The cause was thereupon tried and submitted. On January 21, 1916, the court filed an opinion finding in favor of the defendant on the issues submitted and judgment was entered accordingly. On November 21, 1916 the trial was resumed before the court on the remaining issues, and at the conclusion the court rendered an oral decision that judgment be entered for the defendant; but no findings were filed, and the judgment was not entered. In the meantime, on May 12, 1916, the plaintiff commenced in the District Court of the United States for the Northern District of California a similar suit against the same defendant seeking the same relief as in the first suit. On June 21 1916, the defendant answered as before, and also pleaded the pendency of the prior action in the state court. On November 22, 1916, the defendant filed in the federal court a motion to postpone the trial therein until the final judgment in the state court should be entered. On December 18, 1916, that motion was allowed. The plaintiff in those actions thereafter filed in this court her petition for mandamus to the judge of the District Court of the United States for the Northern District of California to require him to proceed with all convenient speed to hear and determine the suit in that court.

John L. Taugher, of San Francisco, Cal., for petitioner.

M. R. Jones, of San Francisco, Cal., for respondent.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

In brief, the case presented by the petitioner is this: The petitioner began her suit in the state court, and that court by its receiver took possession of the property in controversy. The cause proceeded to trial, and judgment was given to the defendant; but findings were not filed nor judgment entered. The petitioner now asks for mandamus to the District Court of the United States to compel it to go to trial on the same cause of suit between the same parties in an action commenced in that court, after the state court had appointed its receiver and decided some of the issues of the case.

The petition for mandamus must be denied. It is the general rule that, when suits are brought in courts of concurrent jurisdiction involving the same controversy and between the same parties, the court in which the suit was first instituted is entitled to the exclusive jurisdiction to determine the controversy. In Smith v. McIver, 9 Wheat 532, 6 L.Ed. 152, Chief Justice Marshall said:

'We think the cause must be decided by the tribunal which first obtains possession of it, and that each court must respect the judgment or decree of the other.'

In Taylor v. Taintor, 16 Wall. 366, 370, 21 L.Ed. 287, the court said: 'Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted.'

In Harkrader v. Wadley, 172 U.S. 148, 164, 19 Sup.Ct. 119, 43 L.Ed. 399, the court reaffirmed the rule so expressed in Taylor v. Taintor. To the same effect are Westfeldt v. North Carolina Mining Co., 166 F. 706, 92 C.C.A. 378; Jackson v. Parkersburg & O.V. Ry. Co. (D.C.) 233 F. 784; Wolf v. District Court, 235 F. 69, . . . C.C.A. . . . . We find nothing in McClellan v. Carland, 217 U.S. 268, 30 Sup.Ct. 501, 54 L.Ed. 762, cited and relied upon by the petitioner, which modifies the rule so expressed in the cases above cited. The court in that case said:

'The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction, for both the state and federal courts have certain concurrent jurisdiction over such controversies, and when they arise between citizens of different states the federal jurisdiction may be invoked, and the cause carried to judgment, notwithstanding a state court may

...