The only question seriously argued by either party is the right of plaintiff to maintain this action of replevin in the state courts; a United States court having first obtained, by attachment, jurisdiction of the property.
The question here presented was conclusively settled by this court in Smith v. Bauer, 9 Colo. 380, wherein it is announced that property in the hands of a marshal, under a writ of attachment from the federal court, cannot be interfered with by the sheriff under process from a state court, though the possession of the property be wrongful, and not by virtue of a proceeding in rem; but where the consent of the federal court to proceed in the state court against the marshal is first obtained, the rule is otherwise. We deem this decisive of the case at bar on this point.
The rule above referred to is based upon principles of comity and necessity. Its purpose is to avoid unseemly conflict between the federal and state courts. The exception recognized rests upon a failure of the reason of the rule, and is in the interest of economy and justice. By the attachment of the marshal the property is taken temporarily into the custody of the federal court, and placed under its control. By the order of that tribunal consenting to replevin in the state court, a conditional relinquishment of this custody and control is effected. While in the custody of the federal court necessity requires that the right of the state court to possession be denied. In this sense only is the matter jurisdictional. The exercise of jurisdiction conferred upon the state court by law is for the time being, necessarily held in abeyance, but when the custody is voluntarily relinquished by the federal tribunal, for the express purpose of enabling the state court to act, the necessity mentioned no longer exists.
The judgment should be reversed, but this reversal does not operate to reinstate the verdict, and therefore *172appellant’s request for an order directing judgment thereon must be denied.
Reversed.
Reed and Pattison, CO., concur.
Per Curiam.For the reasons stated in the foregoing opinion the judgment is reversed and the cause remanded.