HOKE and CONNOR, JJ., dissenting. In 1904 the plaintiffs began an action in the Superior Court of Swain County for the recovery of money against C. R. Flint and others, nonresidents of this State, and as a basis of jurisdiction levied an attachment upon certain realty, the property of said defendants. That action was removed to the United States Circuit Court, where it *Page 543 is still pending. This is an action in the Superior Court of Swain County alleging that the defendants, residents of this State, are trespassing upon said land, cutting and removing timber and bark therefrom, which the plaintiffs allege will lessen and impair the value of the property attached, and asking injunctive relief to protect the same and the appointment of a receiver to take possession of the timber already felled and the lumber produced therefrom, and dispose of the same under the orders of the said Superior Court.
This is not the case where a plaintiff has brought an action in ejectment or to remove a cloud upon the title against one defendant and a separate action against another defendant as a trespasser, and asking an injunction. This would be necessary, for the plaintiff would have a standing in court by reason of his title to the property, and there would be distinct causes of action against different parties.
But here the plaintiffs have no title to or interest in the land. They have no standing in court except by reason of the lien of the attachment, the efficacy of which process they aver is being impaired by the conduct of these defendants. The action against Flint and others (709) having been removed to the Federal court, the attachment is now process of that court as fully as if the action had been originally begun therein. Winslow v. Collins, 110 N.C. 119. As such process, it will be protected against impairment of its efficacy by orders of that court alone, either by a rule as for contempt in violating property incustodia legis, or by an ancillary bill for injunction or otherwise, as the plaintiffs may be advised. Freeman v. Howe, 65 U.S. 460. The Superior Court of Swain County cannot entertain an independent action to give protection to property in custodia legis in the Federal court or in any other court. This would be a work of supererogation.
The fact that both the plaintiffs and defendants are citizens of this State has no bearing, as it is a proceeding in aid of an order in an action pending in the Federal court protecting property which has been taken incustodia legis in that action, and this can be done by a bill in equity in that court, "not as an original suit, but ancillary and dependent, supplementary merely to the original suit out of which it has arisen, and is maintained without reference to the citizenship or residence of the parties." Freeman v. Howe, supra. In that case the property had been attached in an action pending in the Federal court and the mortgagees attempted to get possession by replevin in the State court. The United States Supreme Court decided that this proceeding in the State court could not be maintained, notwithstanding both parties to the replevin proceeding were citizens of the same State — the Federal court having first obtained jurisdiction by the attachment proceeding. *Page 544 It was held that the remedy of the mortgagees was to intervene by a bill in equity in the Federal court, as ancillary to the action therein pending, and that only thus could the order and harmony of the (710) two jurisdictions be maintained. If the mortgagees could not assert their superior rights in an independent action, certainly the plaintiffs here, who are already parties to the action in the Federal court, cannot protect their lien of attachment in that court against trespassers by an independent action in the State court. Freeman v. Howe,65 U.S. 460, citing Taylor v. Carryl, 61 U.S. 583, and both these cases were discussed and reaffirmed in Covell v. Heyman, 111 U.S. 176, the Court holding that the levy of an attachment or execution was a taking intocustodia legis, and whatever court thus first obtained jurisdiction held exclusive jurisdiction on such property and of all orders affecting it or its custody, pendente lite. The property cannot be taken out of its possession by order of any other court, and, of course, invasions of such possession can only be restrained or punished by the court that has it in its custody and keeping. In Taylor v. Carryl, supra, jurisdiction had first been obtained by an attachment in the State court of a vessel, and it was held that this could not be interfered with by a libel for the wages of the seamen in the United States Court of Admiralty, for the reason that the property "could not be subject to two jurisdictions at the same time"; the first levy, whether State or Federal, withdraws the property from the reach of the process of the other. Hagan v. Lucas, 35 U.S. 403. To same purport, R. R. v. Gomila, 132 U.S. 478. Buck v. Colbath, 70 U.S. 334, simply holds that "a third person, a stranger to the suit and claiming as owner, may sue the officer either personally for damages or on his bond" for trespasses, such action "not affecting the custody of the property."Covell v. Heyman, supra.
An injunction may issue to protect or safeguard property taken into the custody of the court by an attachment (Cauffman v. VanBuren, 20 L.R.A., 446, and notes); but it is an ancillary proceeding to (711) that action and must be issued by the court that holds the property in its custody. As the basis of the plaintiff's claim is the lien of the attachment, it would be necessary for the State court to determine its regularity and validity before it could proceed, and this it could not do as to an attachment in a case still pending in another court.
The judgment discharging the restraining order which had been granted in this case is
Affirmed. *Page 545