(dissenting). Taking the two proceedings as both in personam, I admit at once that the jurisdiction of the Federal court in the law action cannot be ousted or obstructed by the suit in equity brought later in the State court; and I think an admission to the controverse is equally necessary, that the jurisdiction of the State court cannot be ousted or obstructed by the prior action in the Federal court. Each party had a right to invoke, by appropriate procedure, the jurisdiction of the tribunal to which he appealed, and I do not conceive that the right of one is any greater in that respect than that of the other. Each is a suitor before a court with plenary power to decide the one controversy, and there is no presumption that one will decide it better, or more justly, than the other. Jurisdiction is the right and power to hear, consider and determine a controversy between parties litigant. How, then, does the exercise of that power by the State court interfere with or impede the exercise of the same power by the Federal court ? The same right, duty and power is lodged in each, it is concurrent, and when exercised by one the controversy is at an end. There would then be no longer a cause in which the power could be exerted, and there could be no conflict or interference. The controversy would become res adjudicata, and the parties plaintiff had an equal right to proceed until that end was reached. I understand this to be the rule of comity which came out of the necessities of our dual system, and which, it is said, ripened long ago into a principle of right and law. I had believed that this court had firmly announced its adherence to the rule in Merritt v. Steel Barge Co., 79 Fed. 228, wherein it is said, at page 232, 24 C. C. A. 530, at page 535:
“Although a judgment may be rendered in the second suit before the first suit is tried, and may be pleaded in bar in the latter suit because the issue and the parties to the two suits are the same, yet it has never been supposed that the fact that a judgment of another court is offered in evidence to conclude the parties on a given issue or issues either defeats or impairs its jurisdiction, or has any necessary tendency to occasion a conflict of authority”
—and in Ogden City v. Weaver, 108 Fed. 564, wherein it is said, at page 568, 47 C. C. A. 485, at page 489:
“It is simply one of those cases, such as frequently occur, where a State court and a Federal court, in the exercise of a jurisdiction which rightfully belongs to each, are called upon to determine the same question, and the fact that they may disagree and decide the question differently in no wise interferes with the right of either to proceed”
—and in W. E. Stewart Land Co. v. Arthur, 267 Fed. 184. In B. & O. R. Co. v. Wabash R. Co., 119 Fed. 678, 57 C. C. A. 322, Judge Jenkins, speaking for- the court in the Seventh Circuit, said:
*615“Where a suit is strictly in persopam, in which nothing moro than a personal judgment is sought, there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined; and this because it neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with law.”
Supporting authority may be found in the cases cited above. _ In Arthur’s Case, supra, he was first sued by the Land Company in a Federal court in iowa, and later by the same plaintiff on the same cause of action in a State court in Oklahoma. This court held that the Land Company should not be enjoined in the maintenance of both actions against him at the same time; and to me it seems an unjust rule that permits the plaintiff to maintain the second action and denies an equal right to the defendant.
I think the order of the District Judge denying the writ in this case should he affirmed, and I therefore dissent