(dissenting).
I cannot agree that this is a proper case for this court to interfere with the discretion of the respondent District Court by-writ of mandamus. Application of well-established principles seems to me to dictate an opposite course.
It is clear upon the authority of Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 83, 67 L.Ed. 226, 24 A.L.R. 1077, that it is “the duty of the state court to take the case(s) and proceed to judgment.” Assuming, as we must, that the state court will perform that duty the petitioner’s purpose in asking the writ is thwarted completely. The end sought to be accomplished by the petition for the writ was to require the respondent to, “on the record, or proper application, restrain said plaintiffs from further prosecution of said actions at law during the pendency of said Storley suit in the United States District Court, * * * ” and to the further end that respondent should determine such damages in the equity suit. The peculiarity of the situation is that petitioner seeks this relief in order to “be relieved from a vexatious and expensive multiplicity of actions” and “in avoidance of a multiplicity of suits.” No complaint is made of that part of the interlocutory decree which denies *528an injunction in the Storley case for a period of one year, and, under the circumstances there provided, for a longer time. During the interval, no reason appears why all the damage cases now pending in the state court, and as many others as may be brought, may not proceed to final judgment. Therefore, the writ, as prayed for and granted, affords no relief from the alleged “multiplicity of actions” and points to no remedy. It is the general rule that a court will not exercise its discretion in granting mandamus to compel an act which is futile and affords no real relief. United States v. Nordbye (C.C.A.8) 75 F.(2d) 744, 746; City of Boulder v. Lewis (C.C.A.8) 21 F.(2d) 910, 912.
In addition to the foregoing considerations, which in my opinion should influence our decision, the writ should be denied on the ground that mandamus will not lie in behalf of a party who has other adequate remedies. Ex parte Cutting, 94 U.S. 14, 20, 24 L.Ed. 49; Ex parte Baldwin, 291 U.S. 610, 54 S.Ct. 551, 555, 78 L.Ed. 1020; Calf Leather Tanners’ Ass’n v. Morgenthau, 65 App.D.C. 93, 80 F.(2d) 536, 542, certiorari denied, 297 U.S. 718, 56 S.Ct. 595, 80 L.Ed. 1003; Hineline v. Molyneaux (C.C.A.8) 73 F.(2d) 925; United States ex rel. Girard Trust Company v. Helvering, 57 S.Ct. 855, 81 L.Ed.-, decided May 24, 1937. If petitioner’s contentions in the District Court and here are sound, it has a complete remedy for relief from “a vexatious and expensive multiplicity of actions” by injunction. “Avoidance of the burden of numerous suits at law between the same or different parties, where the issues are substantially the same, is a recognized ground for equitable relief in the federal courts. See Ogden City v. Armstrong, 168 U.S. 224, 18 S.Ct. 98, 42 L.Ed. 444; Hale v. Allinson, 188 U.S. 56, 23 S.Ct. 244, 47 L.Ed. 380.” Di Giovanni v. Camden Fire Ins. Ass’n, 296 U.S. 64, 70, 56 S.Ct. 1, 4, 80 L.Ed. 47. The fact that the suits sought to be enjoined are pending in the state, rather than in the federal court, does not alter the situation. Woodmen of the World v. O’Neill, 266 U.S. 292, 298, 45 S.Ct. 49, 51, 69 L.Ed. 293; Jamerson v. Alliance Ins. Co. of Philadelphia (C.C.A.7) 87 F.(2d) 253; Alliance Ins. Co. of Philadelphia v. Jamerson (D.C.) 12 F.Supp. 957. The case of Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, 24 A.L.R. 1077, is relied upon as establishing the proposition that injunction will not lie to restrain the plaintiffs in such a case as this because, as stated in the majority opinion supra, “there is no res involved in the federal court, and mo property in custodia legis; the latter court merely has jurisdiction of a controversy, namely, an action for. injunction.” See majority opinion p. 525. The decision in the Kline Case is based upon section 265 of the Judicial Code (28 U.S.C.A. § 379) which provides in part that, “The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State.” The narrow question there decided was that the pendency of two or more personal actions between the same parties upon the same cause of action in the state and federal court does not give the federal court power to enjoin prosecution in the state court as distinguished from the situation where a res had previously come within the jurisdiction of the federal court and process was necéssary for its protection. But where a well-recognized ground of equitable jurisdiction exists, section 265, upon which the Kline decision is based, has never been considered as depriving the federal court of power to enjoin parties from prosecuting in personam actions in the state court, although there is no res in custody of the federal court. Thus parties prosecuting in the state court may be enjoined on the ground that the complainant is being subjected to a multiplicity of actions. Woodmen of the World v. O’Neill, supra; Jamerson v. Alliance Ins. Co. of Philadelphia, supra; First State Bank v. Chicago, R. I. & P. R. Co. (C.C.A.8) 63 F.(2d) 585, 90 A.L.R. 544; cf. St. Louis, I. Mt. & So. Ry. Co. v. McKnight, 244 U.S 368, 369, 375, 37 S.Ct. 611, 61 L.Ed. 1200. Likewise a federal court may enjoin one from seeking the benefits of a state judgment fraudulently obtained, Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Simon v. Southern Ry. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492, although it is clear that the “proceedings” are still continuing in the state court. Hill v. Martin, 296 U.S. 393, 403, 56 S.Ct. 278, 282, 80 L.Ed. 293. It is equally well settled that the federal court, after an action has been removed to it, may grant an injunction against further proceedings in a state court prior to judgment. Roach v. First Nat. Bank of Memphis (C.C.A.5) 84 F. (2d) 969; Cray, McFawn & Co. v. Hegarty, Conroy & Co. (C.C.A.2) 85 F.(2d) 516; Dillinger v. Chicago, B. &. Q. R. Co. (C.C.A.8) 19 F.(2d) 196; Kolkin v. Gotham Sportswear (D.C. *529N.Y.) 10 F.Supp. 682. In none of these instances was a res in custody of the federal court; its jurisdiction extended only over a controversy. But federal courts have always issued injunction against parties prosecuting actions in the state courts where a ground of equitable jurisdiction existed. Such instances have been designated as “recognized exception to section 265 of the Judicial Code.” Riehle v. Margolies, 279 U.S. 218, 223, 49 S.Ct. 310, 312, 73 L.Ed. 669. In Woodmen of the World v. O’Neill, supra (decided subsequent to the Kline Case), the court pointed out that:
“The jurisdiction thus acquired was not taken away by Section 265 of the Judicial Code. * * * This section does not deprive a district court of the jurisdiction otherwise conferred by the federal statutes, but merely goes to the question of equity in the particular bill; making it the duty of the court, in the exercise of its jurisdiction, to determine whether the specific case presented is one in which relief by injunction is prohibited by this section or may nevertheless be granted. Smith v. Apple, supra [264 U.S. 274] p. 278, 44 S.Ct. 311 [68 L.Ed. 678].”
In the Kline Case, supra, no claim was made that a recognized equitable ground for jurisdiction existed and therefore the court did not consider the question. But such omission in the discussion does not deny the existence of .the rule. Expressions “in every opinion, are to be taken in connection with the case in which those expressions are used.” Cohens v. Virginia, 6 Wheat. 264, 399, 5 L.Ed. 257. A different question is presented where as here complaint is made of a multiplicity of actions.
But, whether on proper application on its part, the petitioner could get an injunction such as that issued in Montgomery Light & Water Power Co. v. Charles (D.C.Ala.) 258 F. 723, in view of the principles recently laid down in Di Giovanni v. Camden Fire Ins. Ass’n, supra, should not here be determined. It is sufficient that if relief is sought from a multiplicity of actions, injunction, and not mandamus is the- appropriate remedy. In Ex parte Baldwin, supra, the petitioners sought mandamus commanding the federal district court to take jurisdiction on a petition for removal of a suit instituted in a state court on the grounds that the trustees in bankruptcy were entitled to have the controversy adjudicated in the federal court. The court denied the petition, not on the ground that the petitioners were not so entitled, but for the reason that if relief were merited, it could be obtained by injunction. The court there said, “Nor need we consider whether the federal court, if it had entertained a petition for removal, would have been obliged to dismiss the suit on the ground that the state court was without jurisdiction because the bankruptcy court had possession of the res. * * * It is sufficient that the extraordinary remedy of mandamus should be denied, because the trustees may by the common remedy of injunction prevent any interference with the jurisdiction of the bankruptcy court. * * * Moreover, the bankruptcy court might, in the exercise of its discretion, conclude that it is desirable to have the litigation proceed in the state court.”
The application of these principles to the case at bar should prevent the issuance of mandamus without regard to whether injunction might issue if proper application were made, because the injury complained of here is of a type cognizable in equity. It is also immaterial to what extent the petitioner may have waived any possible right of injunction by filing answers in the cases pending in the state court. The fact remains that injunction is the appropriate remedy and that mandamus will not issue to extricate a party from a position in which he has voluntarily placed himself. Voluntary waiver of a procedural remedy certainly will not confer another remedy which is designed to accomplish the same end. The petitioner should be on its guard to use the appropriate remedy when the occasion arises.
The opinion apparently is bas.ed upon the further supporting proposition that the petitioner, unless the writ is granted, will be deprived of the benefits of the findings of fact and conclusions of law made by the court in connection with the interlocutory decree. This does not seem to me to aid petitioner here nor to enlarge the jurisdiction of this court nor to furnish any basis for mandamus. If petitioner has acquired any rights under the interlocutory decree, it may plead such rights in the actions in the state court, and the federal courts will see that such rights are protected in the event the state court refuses to enforce them. In Missouri v. Fiske, 290 *530U.S. 18, 29, 54 S.Ct. 18, 22, 78 L.Ed. 145, the Supreme Court said:
“But, if the decree of the federal court can be considered as determining the ownership of the shares so as to bind the state in later tax proceedings upon the death of the life tenant, and there is a federal right to have that effect given to the decree, that federal right can be specially set up and claimed in the proceeding in the state court, and, if the right is finally denied, the decision may be the subject of review by this Court in case the appropriate procedure is followed.” See, also, Dugas v. American Surety Co., 300 U.S. 414, 428, 57 S.Ct. 515, 521, 81 L.Ed. 720.
So, it appears to me the petitioner has other available remedies and that mandamus for that reason is not appropriate.
Further, mandamus will not lie to control the discretion of the court. Lansdown v. Faris (C.C.A.8) 66 F.(2d) 939, 940. Appeal is the remedy for review of discretionary rulings and orders. Petitioner seeks to substitute mandamus for appeal on the ground that appeal will not be available until the final decree is entered, and that in the meantime the cases in the state court may go to final judgment. The majority opinion seems to sustain this contention. To me there are two complete answers: (1) If the petitioner will sustain irreparable injury by the proceedings m the state court, then this is a distinct ground for equitable relief by way of injunction; (2) the fact that appeal must await a final decree is not now a ground, and never was a ground, for review by mandamus. The fact that the appropriate remedy may occasion delay constitutes no basis for the issuance of the writ. Re Connecticut Mut. L. Ins. Co., 131 U.S. clxxx Append., and 26 L.Ed. 561. If decision is to be based upon a race of diligence only, then the. result reached in the opinion should stimulate the plaintiffs in the actions in the state courts. The petitioner, under the decision in the Kline Case, is in no position to complain if the state court proceedings reach final judgment before that in the federal court.
This case is thus distinguished from McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762, because the petitioner there was seeking to enforce a right, unenforceable by any other remedy. The petitioner in that case was a plaintiff who was insisting that the federal court hear his claim.- In reference to such a situation the court in the Kline Case said: “It [the federal court] could not abdicate its authority or duty in favor of the state jurisdiction.” But this is a case where a defendant in a suit to enjoin a nuisance seeks mandamus to compel the court to determine the extent of its liability for damages where the only foundation for such demand consists of requests for findings of fact and conclusions of law. It must be borne in mind that an action to enjoin a wrong is not the same cause of action as one at law for damages arising from its accomplishment. Kelliher v. Stone & Webster (C.C.A.5) 75 F.(2d) 331, 333; City of New York v. Pine, 185 U.S. 93, 107, 22 S.Ct. 592, 46 L.Ed. 820. For that reason a failure to obtain an injunction may not be a bar to a later action at law to recover damages. Kelliher v. Stone & Webster, supra; City of New York v. Pine, supra. Had the court in this instance merely decided to act on the injunction of the plaintiff, the petitioner would, have been in no position to ask that the respondent also determine the question of damages. The stipulation of settlement of February 11, 1935, provided : “It is specifically *, * * agreed that the above settlement * * * for damages shall not be 'a bar or estoppel to prevent his (the plaintiff’s) bringing the above case on for trial on the injunction feature after November 1st, 1935.” Where the plaintiffs were not requesting the respondent to assess damages, he had the undoubted power in his discretion to refuse to assess damages at all. Braithwaite v. Henneberry, 222 Ill. 50, 78 N.E. 34, 36; Deepwater R. Co. v. D. H. Motter & Co., 60 W.Va. 55, 53 S.E. 705, 706, 116 Am.St.Rep. 873. In Braithwaite v. Henneberry, supra, the court said:
“It is the rule that when a court of equity acquires jurisdiction over a cause requiring any equitable relief, the court may retain the cause for all purposes, and establish legal rights and provide legal remedies which would otherwise be beyond the scope of its authority. In such a case the court will not ordinarily limit itself to the execution of partial justice and turn the parties over to a court of law, but will go on and dispose of all the matter at issue so as to do adequate and complete justice between all the parties. Whether the court will so proceed to a final determination of legal rights is a matter for the exercise of sound discretion, which is subject to review, and which will ordinarily be exer*531cised by retaining the cause and granting any necessary legal remedies.”
In the Deepwater Case, supra, it was said:
“The rule [allowing the granting of complete relief] is not infallible.”
Because the federal court chose to assess damages in behalf of some of the plaintiffs, the petitioner obviously acquired no right to have the damages as to the other plaintiffs assessed also. The petitioner throughout its argument labors under the misapprehension that it has some sort of a right to have its personal liabilities determined in the federal court to the exclusion of the state court. The argument misconceives the applicable rule of law. “Indeed, since the case presented by that suit [the one in the state court] was such as to preclude its removal to the federal jurisdiction, the state jurisdiction in that particular suit was exclusive. It was, therefore, equally the duty of the state court to take the case and proceed to judgment. There can be no question of judicial supremacy, or of superiority of individual right.” Kline v. Burke Construction Co., supra. The petitioner’s case is not strengthened by an attempted analogy drawn from instances where the plaintiff is denied the right to dismiss his bill because of the resulting prejudice to the rights of the defendant. The line of demarcation is clear between the case that is here and the one supposed for illustration. Whether the plaintiff, upon proper application to the trial court, can dismiss his bill in accordance with well established rules set out in Ex parte Skinner & Eddy Corp., 265 U.S. 86, 93, 44 S.Ct. 446, 68 L.Ed. 912, depends upon prejudice “other than the mere prospect of future litigation rendered possible by the discontinuance.” Pullman’s Palace-Car Co. v. Central Transportation Co., 171 U.S. 138, 146, 18 S.Ct. 808, 811, 43 L.Ed. 108. But the petitioner in this case is fearful of nothing except that the claims for money damages will go to final judgment against it in the state court and not in the federal court. The removing of a cause to the federal court has never been considered as giving a defendant a right to have his liabilities determined in that court. New York Life Ins. Co. v. Driggs (C.C.A.4) 72 F.(2d) 833. It is a plaintiff who is asking a federal court to give him affirmative relief, McClellan v. Carland, supra, not a defendant who merely requests a declaration of law that his total liabilities be there determined, that can insist on the exercise of a federal jurisdiction once invoked.
In my opinion the writ should be denied on the grounds (1) that it is futile; (2) that if petitioner’s grounds for a writ are sound its remedy is by injunction; and (3) that mandamus is not a substitute for appeal and should not be used to interfere with discretionary orders or rulings of a nisi prius court.