(dissenting)—I am unable to concur with the majority upon the question of the jurisdiction, and must dissent.
This court held in Paxton v. Daniell, 1 Wash. 19, 23 Pac. 441, and the rule has remained unquestioned since, that, under our statute, service of a summons upon a nonresident can be made only where property of the defendant is brought under the control of the court. In Cosh-Murray Co. v. Tuttich, 10 Wash. 449, 38 Pac. 1134, it was held that, in an action of debt against a nonresident defendant, there can be no publication of a summons prior to attachment of his property.
In this case it seems to be decided that, because this case is one for equitable relief, the injunctional process may be resorted to in order to reach and apply property which cannot be attached or garnished by law. It is true that the United States supreme court, in Pennington v. Fourth Nat. Bank of Cincinnati, 243 U. S. 269, following a construction sustaining jurisdiction by the supreme court of Ohio in the same case (92 Ohio St. 517, 112 N. E. 1085), sustained the lower court; and there are some other states which have adopted such rule. Even in the Ohio case passed upon by the United States supreme court, the equitable process ran against both the principal defendant and the bank, *695enjoining disposition of, or interference with, funds deposited in the- bank actually located in the state and in the jurisdiction of the court. Here the thing sought to be in a manner sequestrated is not a fund but a debt, a thing the property in which follows always the residence of the owner, the defendant. That fact, it seems to me, renders the thing unseizable in this state without actual, and not constructive, process issued and served upon the defendant, the owner.
In the Oklahoma case, cited in the maj ority opinion, it was said with sound reason that:
“In the absence of a seizure of property or debts upon which the judgment of the court is to operate, power to render any judgment is lacking. The mere fact that there is property belonging to the nonresident defendant within the jurisdiction of the court is not sufficient to give the court jurisdiction. 12 Enc. Pleading & Practice, 145. The property must be taken by one of the provisional remedies, or sought to be appropriated by some process of the court.”
And it was held that injunction was not such process.
A restraining order or an injunction does not appropriate anything. It only controls the personal action of some one. It controls the person of the one against whom it runs, and does not take custody of the property. And here it controls the persons and actions only of the third persons, for the principal defendant was beyond the jurisdiction of the court.
It is shown that a foreign court has actually obtained jurisdiction of the parties, the subject of the action, and this very property now claimed to be seized in this state. There is a conflict of jurisdiction, and it seems but reasonable that the state court, having the weakest grounds to support its jurisdiction, should at least relinquish its shadowy jurisdiction to that court having unquestionable grounds to sustain its authority.
In my opinion, the action should be dismissed.
Ellis, C. J., Main, and Parker, JJ., concur with Holcomb, J.