DISSENTING OPINION. In dissenting from the majority opinion attention is called to the fact that David B. McConnell died a resident of Vanderburgh County, Indiana. At the time of his death he was in the employ of the appellee. His widow, the appellant herein, qualified as administratrix of his estate in the Vanderburgh Probate Court, which court, under the statute, was the only court authorized to qualify the administratrix. After qualification she filed an action in that court against the appellee for damages on account of the death of her husband. Thereafter, she dismissed that action and threatened to file an action in the Federal District Court in the city of Saint Louis, Missouri.
The action appealed from was filed by the appellee against the appellant in the probate court to restrain and enjoin her from filing suit in any county other than Vanderburgh or contiguous counties. Upon the hearing of that case the appellant offered no evidence and a judgment was rendered in favor of appellee. At the *Page 36 time judgment was rendered no action was pending in the Federal District Court in Saint Louis, Missouri.
On appeal the appellant does not in any manner question the sufficiency of the facts upon which the judgment is based. For the purpose of this appeal it may be considered that the probate court was fully warranted in rendering judgment restraining the appellant insofar as the facts are concerned, which would justify such injunction. There is no controversy as to the sufficiency of the facts to sustain the judgment, nor is there a question that both appellant and appellee were residents of Vanderburgh County at the time the decedent met his death, at the time the action was filed, and at the time judgment was rendered. Likewise, there is no dispute that the appellee was doing business in the city of Saint Louis. After the injunction was granted by the probate court, the appellant filed an action in the Federal District Court in Saint Louis. She was cited for contempt of the probate court and removed from office. Afterwards, she appeared before the court and reported that she had dismissed her action in the Federal District Court in Saint Louis, and asked the court to reinstate her as administratrix of the estate. Upon her statement she was reinstated and perfected this appeal.
The prevailing opinion admits that a state court of equity in Indiana has the power to enjoin a citizen of the state from filing a suit in the state court of another state. The authorities which support this rule are as follows: Kern v.C.C.C. St. L. Ry. Co. (1933), 204 Ind. 595, 185 N.E. 446;N.Y., Chicago St. L.R.R. Co. v. Meek (1936), 210 Ind. 322,1 N.E.2d 611; C.C.C. St. L. Ry. Co. v. Shelly (1933),96 Ind. App. 273, 170 N.E. 328; N.Y., Chicago St. L.R.R. Co. v.Perdiue (1933), 97 Ind. App. 517, 187 N.E. 349; Alspaugh v.N.Y.C. St. L.R.R. Co. (1934), 98 Ind. App. 280, 188 N.E. 869;State ex rel. N.Y., Chicago *Page 37 St. L.R.R. Co. v. Nortoni (1932), 331 Mo. 764, 55 S.W.2d 272, 85 A.L.R. 1345, annotated; Reed's Adm'x. v. Ill. CentralR. Co. (1918), 182 Ky. 455, 206 S.W. 794; 14 R.C.L. 411, §§ 112 to 115.
The foregoing authorities, without question, recognize that a state court possesses equity power and jurisdiction over its own citizens to prevent the prosecution of an action, shown to be inequitable and unconscionable, in the courts of another state, even though no action is pending in the state court at the time to recover in the action restrained. The sole and only ground relied upon for a reversal of the action is that the Vanderburgh Probate Court did not possess equity power over a citizen of that county and an officer of that court to enjoin the maintenance of the action in the Federal District Court of Saint Louis, Missouri. As a basis for that assertion the opinion points out that the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., authorizes the filing of a suit in the United States District Court in any one of three places: in the district of the residence of the defendant, in the district where the cause arose, and in the district where the defendant is doing business. If that were the only provision of the Act there would be more reason for the prevailing opinion, but the opinion overlooks another provision of that statute. Section 56 provides:
"The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several states, and no case arising under this chapter and brought in any state court of competent jurisdiction shall be removed to any court of the United States."
The statute gives to the two courts concurrent jurisdiction.
It is the general rule that there is no authority in state courts to enjoin proceedings in the federal courts. But there are exceptions and limitations to this rule. *Page 38 They rest upon the general doctrine that, as between courts of concurrent jurisdiction, the court which first obtains jurisdiction of the subject-matter and the parties, retains it to the exclusion of the other courts. Therefore, a state court, in a proper case, before an action is begun in a federal court, may prevent the commencement of such an action; and so, too, if a state court has obtained jurisdiction of the parties and subject-matter, and thereafter proceedings are begun in a federal court, the state court, in the protection of its own jurisdiction, may enjoin the parties from proceeding in the federal court.
In The Home Insurance Company v. Howell (1873), 24 N.J. Equity 238, this question is discussed by the learned chancellor. A suit was instituted in the state court of the State of New Jersey against a citizen of that state to enjoin the filing of an action upon insurance policies in the Circuit Court of the United States for the Northern District of Illinois. The action was filed in the state court before it was filed in the Circuit Court of the United States. It was held that the state court, having first obtained jurisdiction of the controversy over which the federal court in another state also had concurrent and coordinate jurisdiction, in its discretion will retain the jurisdiction until it is finally disposed of; that when a party is within the jurisdiction of the state court so that on a bill properly filed in the state court, it has jurisdiction of his person, although the subject-matter of the suit may be situated elsewhere, he may be enjoined from prosecuting the action in the federal court. This opinion establishes the rule that a state court may enjoin a resident from filing an action in a federal court of another district, the cause being then pending in the state court. The Indiana decisions go a step farther to hold that a state court of equity on sufficient showing will enjoin one of its citizens from *Page 39 filing the action in a foreign jurisdiction even when no action is pending in the state court to recover in the action enjoined.
The rule is recognized in the late case of Morrow v.Superior Court in and for Kings County (1935), 9 Cal. App. 2d 16,48 P.2d 188. In that case the question of jurisdiction between the state and federal courts is involved. The court said (p. 22):
"Where a state court and a federal court have concurrent jurisdiction, the tribunal whose jurisdiction first attaches will be left to determine the controversy without interference from the other. Thorpe v. Sampson (C.C.), 84 F. 63; Gamble v. San Diego (C.C.), 79 F. 487; In re Cohen, 198 Cal. 221, 244 P. 359. In Baltimore O.R. Co. v. Wabash R. Co. (C.C.A.), 119 F. 678, the court said: `It is settled that, when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted. Harkrader v. Wadley, 172 U.S. 148, 19 S. Ct. 119, 43 L. Ed. 399; Farmers' Loan Trust Co. v. Lake Street El. R. Co., 177 U.S. 51, 20 S. Ct. 564, 44 L. Ed. 667. . . . The rule is not only one of comity, to prevent unseemly conflicts between courts whose jurisdiction embraces the same subject and persons, 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." Covell v. Heyman, 111 U.S. 176, 4 S. Ct. 355, 28 L. Ed. 390. The rule is not limited to cases where property has actually been seized under judicial process before a second suit is instituted in another court, but it applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in all suits of a like nature. Farmers' Loan Trust Co. v. Lake Street El. R. Co., supra; Merritt v. American Steel Barge Co., 79 F. 228, 24 C.C.A. 530, 49 U.S. App. 85. The rule is limited to actions *Page 40 which deal either actually or potentially with specific property or objects.'"
The principle here contended for is fully discussed. The HomeInsurance Company v. Howell, supra, is cited, together with many other authorities.
14 R.C.L. 419, § 122, states the rule as follows:
"So a state court, in a proper case, before an action is begun in a federal court, may prevent the commencement of such an action; and so, too, if a state court has obtained jurisdiction of the parties and subject-matter, and thereafter proceedings are begun in a federal court, the state court, in the protection of its own jurisdiction, may enjoin the parties from proceeding further in the federal court."
Many authorities are cited to sustain the text.
In deciding the question presented in this appeal this court should not be unmindful of all the conditions confronting the Vanderburgh Probate Court at the time judgment was rendered. Especially should it not be overlooked that it is conceded that the facts were ample to justify the entry of the judgment. It is clear from the prevailing opinion that if the judgment had been one to enjoin the appellant from filing her action in a state court of another jurisdiction, no question would be made against the judgment. Apparently the holding of the majority of the court looks upon the fact, and that fact alone, that the suit is proposed to be filed in a federal court of another jurisdiction instead of a state court as controlling and limiting the equity powers of the Vanderburgh Probate Court.
Chicago, M. St. P. Ry. Co. v. Schendel (1923), 292 F. 326, strongly relied upon in the prevailing opinion, is not in point upon the question involved in the appeal. That was a case where the state court under a state statute was attempting to interfere with and limit the jurisdiction of the federal court, which proposed to proceed according to an act of the Congress contrary to the *Page 41 legislative act of the state. The question of concurrent jurisdiction of the two courts is not involved.
Under the Federal Employers' Liability Act a citizen is authorized to choose his own court. He may file the action in either a state or federal court, because both of these courts are given original, concurrent jurisdiction. One court cannot enjoin the other from taking cognizance of an action under that Act. That was the error in the Schendel case, supra. The state court undertook to restrain the federal court, a thing it could not do.
Also, in Connelly v. Central R. Co. of New Jersey (1916), (D.C.), 238 F. 932, and Trapp v. Baltimore O.R. Co. (1922), (D.C.), 283 F. 655, relied upon in the prevailing opinion, we find the same situation existing. The state courts assumed the authority to limit the jurisdiction of the federal courts. No such authority is asserted or relied upon in upholding the judgment of the Vanderburgh Probate Court. The question discussed in those cases is entirely distinct from the question involved in this appeal. There is no attempt upon the part of the probate court to say to the District Court of Saint Louis what it shall or shall not do. The probate court was exercising jurisdiction over one of its citizens, not only a citizen of the county but an officer of the court — an administratrix appointed by the probate court to administer the estate of David B. McConnell — the only court authorized by statute to administer that estate. In the case at bar the state court is not attempting, pursuant to a state law, to interfere with federal jurisdiction. No conflict of jurisdiction between the two courts is involved. There is no question of transfer from one court to the other, but the sole question is one of the right of the Vanderburgh Probate Court to exercise its equity power over a citizen of its county and an officer of that court. *Page 42
When Section 56 of the Federal Employers' Liability Act declared in no uncertain terms that the jurisdiction of the federal court was coordinate and concurrent with that of the state court, neither court is superior to the other insofar as jurisdiction of matters involved under that act is concerned. The probate court first assumed jurisdiction of the administration of the estate and entered the injunction herein appealed from before the action was filed in the Federal District Court in Saint Louis. Under the decisions of this court, cited above, it is not a pending action that gives the equity court jurisdiction over the citizens of this state. It is the presence and residence of the citizen within the court's jurisdiction.
The probate court committed no error in limiting the proposed action of the appellant to Vanderburgh and contiguous counties. This court takes judicial notice of the fact that, located in Vanderburgh County, there are four courts possessing jurisdiction to try appellant's cause of action, to wit: the Vanderburgh Probate Court, Superior Court, Circuit Court, and the United States District Court for the Southern District of Indiana.
On the uncontested showing that the parties to the action and all the witnesses resided in that county and vicinity, the probate court was justified, and, indeed, it was its duty to enjoin the maintenance of the action in a court far remote from the scene of the cause of the action. I cannot accept the rule that a state court of equity may enjoin a citizen from filing an action (not then pending) in a court of another state, but cannot enjoin the same citizen from filing the same action in a federal court of another district.
In my opinion the petition for a rehearing should be granted, and the judgment of the Vanderburgh Probate Court be affirmed. *Page 43