(dissenting).
I respectfully dissent. I do so most reluctantly because the majority opinion has reached a just result. It is my view, however, that the last clause of 12 U.S.C.A., § 91, absolutely forbids the issuance by a state court of a temporary injunction or any similar process against a national bank pri- or to entry of a final judgment or decree. That clause provides:
. . ; and no attachment, injunction, or execution, shall be issued against such (national banking) association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court.”
As acknowledged in the majority opinion, the Supreme Court of the United States has construed this provision to apply not only to insolvent national banks but to solvent ones as well. That Court has said that “The remedy is taken away altogether and cannot be used under any circumstances.” Pacific National Bank of Boston v. Mixter, 124 U.S. 721, 8 S.Ct. 718, 31 L.Ed. 567 (1888). The opinion in the Mixter case traces the legislative history of § 91 and makes clear that the intent of Congress was to protect all national banks from all pre-judgment injunctions, attachments, etc., issuing from state courts. The distinction made in the majority opinion between state court actions brought by debtors of a national bank and those brought by creditors of a national bank is, in my opinion, not a valid one because the harm to the national bank defendant is the same whether the injunction is sought by a debtor or by a creditor. See First National Bank of Oakland v. Superior Court, 240 Cal.App.2d 109, 49 Cal.Rptr. 358 (1966), cert. den. 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966); Miller v. Mercantile National Bank of Hammond, 234 Ind. 202, 125 N.E.2d 720 (1955); Kemple v. Security First National Bank of Los Angeles, 249 Cal.App.2d 719, 57 Cal.Rptr. 838 (1967); Freeman Mfg. Co. v. National Bank of Republic, 160 Mass. 398, 35 N.E. 865 (1894). A temporary injunction by a debtor restraining foreclosure of a deed of trust belonging to the bank constitutes interference with the assets of the bank in the same way as does an attachment by a creditor of the same deed of trust. Accordingly, I would hold that the Chancellor was correct.