Armour & Co. v. Miller

FARIS, Circuit Judge. This is an original petition for the writ of mandamus to require the Honorable Andrew Miller, as judge of the District Court of the United States for the District of North Dakota, herein called respondent, to retain and exercise jurisdiction over certain parties and subject-matter for the determination of all damages sustained by such parties and all of the parties plaintiff, in a certain action for an injunction and all further relief, now pending in the court of which respondent is the duly appointed, qualified, and acting judge; that he vacate a part of his interlocutory decree in such action in which he declined to retain jurisdiction for the assessment of damages; that on the record, or on proper application, he restrain those plaintiffs over whom he declined to retain jurisdiction, from the further prosecution of numerous certain actions for damages, now pending in a state court, and “for further relief.” The respondent filed a full and lengthy return; thereupon petitioner filed a motion for judgment on the pleadings, and on this motion the case came on for hearing before this court. In this situation, we are of the view that the return of the respondent imports verity, and while such return denies one or two unimportant allegations of the petition for the writ of mandamus, we must assume that such denied allegations are untrue. The facts are entangled and confusing and not the less so because there are numerous references to the many plaintiffs and groups thereof in the state court cases, and in the federal court case of John Storley v. Armour & Co., and in the briefs here and in the petition for the writ, as the “32”, the “44”, the “12”, the “16”, and the “38.” No doubt, the adoption of this small-arms ordinance nomenclature saved much labor to counsel, who thus avoided setting out names and groups, but we have found it confusing, so that it has been well-nigh impossible for us to check accurately the facts in the case. But'these facts seem to run fairly thus: In 1934 and for a number of years prior thereto, petitioner, Armour & Co., owned and operated stockyards and a packing plant, whereat daily they slaughtered and prepared fot market some 2,000 head of live stock. This plant was located on the Sheyenne river, at a point at or near West Fargo, in Cass county, N. D., and upstream from the farms of each of the many plaintiffs in the injunction suits next below mentioned. On or about July 6, 1934, one John Storley, as plaintiff and 31 others, who were farmers, owning, occupying, and operating farms on and abutting on, the Sheyenne river, each began separate actions in the state district court of Cass county to enjoin Armour & Co., from polluting the waters of Sheyenne river by discharging therein offensive offal and effluent from its packing plant and stockyards, and for damages. All of these 32 actions were removed by Armour & Co., defendant therein, to the District Court of the United States, for the District of North Dakota, then and now presided over by respondent. On December 24, each of the 32 plaintiffs, except John Storley, asked and was permitted to amend his respective complaint, so as to eliminate all reference to and prayer for equitable relief; thus leaving the actions to stand for damages only. All of these actions wherein the damages claimed did not exceed $3,000 were remanded to the state court. Those wherein the alleged damages exceeded $3,000 were transferred to the law side of the docket (again except Storley, below especially referred to). Against these amendments, and the remanding of the cases; counsel for — 523 — Armour & Co. objected, but saved no exceptions. Thereafter, each and all of these ,32 cases, except the Storley case, were on February 11, 1935, compromised and settled by the payment of all damages accrued up to January 1, 1936. This compromise settlement was by stipulation, which provided, in effect, that on or after November 1, 1935, any of the 31 plaintiffs, if the nuisance had not earlier been abated by Armour & Co., could ask for a setting and trial of the Storley case (an alleged class action, wherein the damages claimed were $3,500). Thereupon, all of the cases, except that of Storley, were dismissed in the federal court and in the state court, respectively; leaving of the entire 32, only the case of Storley pending. In the latter case a special stipulation was filed, wherein it was agreed that that case should be continued till November 1, 1935, and in the meantime, Armour & Co. should install “facilities for primary treatment by screening and settling of packing house waste.” If, however, on or-after November 1, 1935, Storley should still deem unlawful pollution of Sheyenne river to exist, he was privileged to bring the case of Storley v. Armour & Co. on for trial on the bill as filed by him, save that “all damages accruing to Storley up to January 1, 1936,” were compromised, paid, and eliminated from the complaint. In October, 1936, counsel for Storley (who was also counsel for the 31 other plaintiffs, whose individual actions for damages and injunctions had been dismissed after amendment, so as to pray for damages only) moved the federal District Court to set the Storley case down for trial. It was accordingly set for trial for December 8, 1936. At the beginning of the trial some 44 farmers with like alleged damages and grievances were by stipulation made plaintiffs in the case of Storley v. Armour & Co. These included those (and among them the 16 whose names are set out below) who had theretofore sued, settled, and dismissed their suits, and others who seemingly had not then brought suits in any court. The names of those (16 in all), who had in October and November, 1936, each brought, and then .had pending in the state district court for Cass county, actions at law against Armour & Co. for damages accruing since January 1, 1936, were: E. A. Ecklund, H. L. Ecklund, Edwin Waa, and Theodore Waa, individually and as Waa Bros., Carl Rudolph Landblom, Herman Rust, Roy Landblom, Arthur Waa, L. Oquist, Helmer Paulson, Gust A. Johnson, Alfred Selstedt, Mrs. Ida Ostrom, administratrix of the estate of G. H. Ostrom, Charles A. Hyde, Mary Hyde Bell, and Nellie Hyde Chapman. Each of these plaintiffs claimed damages in the sum of $1,800 only, except the last three above-named, who sued jointly for $3,000. Each of the above-named persons were among those, who pursuant to stipulations, had voluntarily had themselves made parties to the suit of Storley v. Armour & Co. at the beginning of the trial thereof, but after they had filed suits for damages in the state court. It is not presently seen to be important, but for the sake of accuracy it may be said that the last three of the above-named persons brought their joint 'action for damages in the state court after the Storley suit was tried, but before the rendition of the interlocutory decree therein, whereof petitioner complains in the action at bar. Armour & Co. came into the state court and filed answers in each of 13 damage suits. These answers were general denials and- were filed as counsel for Armour & Co. urge, in effect, to prevent the taking of judgments by default. Counsel for respondent says that the status quo could have been maintained by filing a demurrer, under the statute of North Dakota Be the law on the latter point as may be, we do not think it has any decisive bearing in this case. Thereafter, and in January, 1937y the respondent made and filed findings of fact and conclusions of law and entered what is called in the record an interlocutory decree in the case of Storley v. Armour & Co., to the effect that though a continuing nuisance as to the plaintiffs in that case existed, he would defer the entry of a final decree permanently enjoining Armour & Co. for one year to the end that the latter might be enabled in the meantime to find and install some method or device by which to abate the existing nuisance. Respondent, to permit this installation to be accomplished, retained jurisdiction of the case -for the assessment of damages down to the date of the final decree, “in such wise as may be consistent with the practice and procedure in equity,” as to John Storley and all those who had been made plaintiffs in the case, except as to the 16 persons whose names" we have set out — 524 — above, and who then had 13 individual damage suits pending. in the state court As to such 16, he decided that comity existing between the state court and the federal District Court conferred power on him to use his discretion ^.s to whether he’ should retain them as plaintiffs in the Storley suit and therein assess their damages, or permit their damages to be assessed by the state court, wherein as said already they had sued in October and November, 1936, and January, 1937, respectively. So respondent declined to retain jurisdiction over them as to the matter of damages relegating that matter to the state court, out of deference to comity, which in his opinion vested in him a discretion so to do. Hence this case. Petitioner herein insists that the court of respondent acquired jurisdiction over all plaintiffs in the equity suit prior to the beginning by the 16 named above of their actions for damages in the state court, and so it was the duty of respondent to retain that jurisdiction and assess their damages up to the date of the final decree therein, and so, therefore, abdication of such jurisdiction was as to such 16 unlawful and can be controlled by this.court by the writ of mandamus. As set forth by us early in the statement of facts, we are asked to issue the writ of mandamus commanding the repair, so to speak, of three alleged legal derelictions, -to wit, that (a) respondent retain jurisdiction in his court and in the Storley case over Ecklund and the 15 others, who'have pending actions in the state court for damages; (b) that respondent vacate so much and that part of the interlocutory decree, wherein he declined to retain such jurisdiction; and (c) that respondent restrain Ecklund and the 15 others, who have actions for damages pending in the state court, from the further prosecutions of such actions. It seems fairly clear that if the relief asked in proposition (a), supra, shall be afforded, then since there has not as yet been entered any final decree of injunction (and none may ever be entered; see Harrisonville v. Dickey Clay Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208) no occasion exists to consider proposition (b), supra. If jurisdiction over the 16 is ordered to be and is retained, the matter will automatically work itself out in the final decree. In proposition (c), supra, the situation is that the respondent has never been requested in any formal ancillary bill or cross-bill to restrain those who are suing in the state court for damages. True, the respondent in his return quotes’ the interlocutory decree, which apposite to nothing and no pleading found in the record says this: “This court will not undertake the determination or assessment of damages sustained' prior to the date of this decree by those plaintiffs who now have actions pending untried in said court nor restrain said plaintiffs from the prosecution of such actions.” So far as this quoted excerpt shows anything, it shows that respondent has passed on the matter of an injunction and denied it; but the record also shows that he acted on it, to the extent above indicated, when it was not before him in such formal wise as to confer jurisdiction on him. If he has already passed on it, nothing is better settled than that mandamus will not lie to compel him to decide it differently; mandamus in a,proper case does not dictate any named decision, or designate the color of action to be taken; it merely requires action in case of nonaction. So, for this reason, and because the record is silent otherwise on the point and because no proper application has ever been made for an injunction or restraining order and for an additional reason below discussed, it deserves no further notice here, so far as concerns the power of this court to compel by mandamus action on it by respondent. We think, no doubt can exist, that before respondent could acquire jurisdiction to pass on the matter of whether or not he would restrain the prosecution of pending actions in the state court it was necessary that an ancillary complaint or cross-complant should have been filed and the matter heard formally and a decree entered ; if all this was in fact done, the record does not show it; indeed, it would have no place in this record, since an appeal and 'not mandamus in such situation would constitute the remedy. It may, we think, be conceded that when a federal court has antecedently acquired jurisdiction over a cause of action either in rem or in personam, and is exercising that jurisdiction, it may not abdicate such jurisdiction and refuse to proceed further because of the pendency of an action in a state court involving the same — 525 — subject-matter, and that if it does so, mandamus will lie to compel it to proceed notwithstanding the action in the state court. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762; Chicot County v. Sherwood, 148 U.S. 529, 13 S.Ct. 695, 37 L.Ed. 546; Travelers’ Protective Ass’n v. Smith (C.C.A.) 71 F.(2d) 511; Woolf v. Reeves (C.C.A.) 65 F.(2d) 80, 81; Frankel v. Woodrough (C.C.A.) 7 F.(2d) 796. In such situation we think no question of comity arises. Here the 16 plaintiffs, as nearly as we can gather from a peculiarly dark and difficult record, each originally came by separate suits into a state chancery court and prayed for an injunction and for damages.' In the federal court, or in the state court, they dismissed all of these original actions, but reserved the right, in effect, to reinstate them, by becoming parties to the yet pending case of Storley v. Armour & Co., which was an action for an injunction and all further relief. When the Storley case was finally set for trial, they voluntarily made themselves parties thereto; thus we think by the strongest implication waiving the right to a jury trial oil the matter of damages. Smith Engineering Co. v. Pray (C.C.A.) 61 F.(2d) 687; Sklarsky v. Great Atlantic, etc., Co. (D.C.) 47 F.(2d) 662, 665; Di Menna v. Cooper & Evans Co., 220 N.Y. 391, 396, 115 N.E. 993. It is, of course, well settled that a court of equity having acquired jurisdiction of the subject-matter of a suit will retain such jurisdiction for all purposes, and adjudicate all disputed rights of the parties arising out of such subject-matter, and this too, notwithstanding some of such rights may sound at law [Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 49 S.Ct. 220, 73 L.Ed. 480; Smith Engineering Co. v. Pray, supra; Zenith Carburetor Co. v. Stromberg etc. Co. (C.C.A.) 270 F. 421; The Salton Sea Cases (C.C.A.) 172 F. 792; Maytag Co. v. Meadows Mfg. Co. (C.C.A.) 45 F.(2d) 299; rule 23 Rules in Equity, 28 U.S.C.A. following section 723] ; indeed it is its duty to do so, and “not remit any part of [the controversy] to a court of law” [Connecticut Fire Ins. Co. v. McNeil (C.C.A.) 35 F.(2d) 675, 676; McGowan v. Parish, 237 U.S. 285, 35 S.Ct. 543, 59 L.Ed. 955; Greene v. Louisville & I. R. Co., 244 U.S. 499, 520, 37 S.Ct. 673, 61 L.Ed. 1280, Ann.Cas. 1917E, 88; Camp v. Boyd, 229 U.S. 530, 552, 33 S.Ct. 785, 57 L.Ed. 1317]. And in cases such as the suit of Storley, damages may be adjudged down to the date of the trial. City of Harrisonville v. Dickey Mfg. Co. (C.C.A.) 61 F.(2d) 210, 213. In fact, upon weighing the respective hurts which the granting of a permanent injunction would work upon Armour & Co., and upon the several plaintiffs respectively, it would seem and has been ruled that respondent has the power to deny destruction of petitioner’s business through a decree of permanent injunction, on condition of ample and final compensation to the several plaintiffs in a lump sum. Harrisonville v. Dickey Clay Mfg. Co., 289 U.S. 334, 53 S.Ct. 602, 77 L.Ed. 1208. It is, of course, fairly well settled that the writ of mandamus should never issue if any other remedy exists which is fully adequate. 18 R.C.L. 131, 132; 26 Cyc. 171. It has been doubted seriously whether the existence of an adequate equitable remedy will preclude the issuance of the writ (26 Cyc. 172); but clearly the existence of an equitable remedy is to be considered as an element in the discretion which a court may always exercise touching the issuance of the writ (see Ex parte Baldwin, 291 U.S. 610, 54 S.Ct. 551, 78 L.Ed. 1020 ; 26 Cyc. 172). The Baldwin Case, supra, makes it fairly clear that if this were a bankruptcy matter, or even a case wherein the res was in custodia legis and jurisdiction over it had, as to the federal court been, as against the state court, antecedently acquired, injunction would lie against the plaintiffs in the state court cases to enjoin further prosecution of their several actions. But here there is no res involved in the federal court, and no property in custodia legis; the latter court merely has jurisdiction of a controversy, w namely, an action for an injunction. Such an action argues no lien, and comprehends no res which may be affected by any action in a state court. An injunction suit is an action in personam and operates against persons and not property. 14 R.C.L. 307. The several actions now pending in the state court and being prosecuted by the 16 persons herein sought to be retained in the court of respondent are actions also in personam, namely, suits at law for damages to be paid in money. The great weight of authority warrants the view that it is the duty of a federal District Court to retain jurisdiction of, and to decide a case pending before it, notwithstanding the pendency of an action in personam in a state court which involves the same — 526 — subject-matter. Boynton v. Moffat Tunnel Imp. Dist. (C.C.A.) 57 F.(2d) 772, 778; Krauss Bros. Lumber Co. v. Louis Bossert & Sons (C.C.A.) 62 F.(2d) 1004, 1006; Jensen v. New York Life Ins. Co. (C.C.A.) 59 F.(2d) 957; Rogers v. Paving Dist. (C.C.A.) 84 F.(2d) 555, 558; McClellan v. Carland, supra; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 82, 67 L.Ed. 226, 24 A.L.R. 1077. In such a situation, the case of Kline v. Burke Construction Co., supra, as we read it, holds that an action to enjoin further prosecution by the plaintiffs in the state court cases would not lie in favor of Armour & Co., because there was no custody of property in the federal court to be protected by the injunctive process. See Stewart Land Co. v. Arthur (C.C.A.) 267 F. 184. In the case of Kline v. Burke Construction Co., supra, the Supreme Court quoted with seeming approval what was said in Baltimore & Ohio R. Co. v. Wabash R. Co. (C.C.A.) 119 F. 678, 680, thus: “It is settled that, when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted. * * * The rule is not only one of comity, to prevent unseemly conflicts between courts whose jurisdiction embraces the same subject and persons, but between state courts and those of the United States it is something more. ‘It is a principle of right and law, and therefore of necessity. It leaves, nothing to discretion or mere convenience.’ Covell v. Heyman, 111 U.S. 176, 4 S.Ct. 355, 28 L.Ed. 390. The rule is not limited to cases where property has actually been seized under judicial process before a second suit is instituted in another court, but it applies as well where suits are brought to enforce liens against specific property, to marshal assets, administer trusts, or liquidate insolvent estates, and in all suits of a like nature. Farmers’ Loan & Trust Co. v. Lake Street El. R. Co. [177 U.S. 51, 20 S.Ct. 564, 44 L.Ed. 667] ; Merritt v. Steel-Barge Co., 24 C.C.A. 530, 79 F. 228, 49 U.S.App. 85. The rule is limited to actions which deal either actually or potentially with specific property or objects. Where a suit is • strictly in personam, in which nothing more than a personal judgment is sought, there is no objection to a subsequent action in another jurisdiction, hither 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. Stanton v. Embrey, 93 U.S. 548 [23 L.Ed. 983].” Upon another phase apposite here, the Supreme Court said in the Kline Case, supra, 260 U.S. 226, at page 235, 43 S.Ct. 79, 83, 67 L.Ed. 226, 24 A.L.R. 1077, this: “The well-established rule, to which we have referred, that where the action is one in rem that court — whether state or federal —which first acquires jurisdiction draws to itself the exclusive authority to control and dispose of the res, involves the conclusion that the rights of the litigants to invoke the jurisdiction of the respective courts are of equal rank. See Heidritter v. Elizabeth Oil Cloth Co., 112 U.S. 294, 305, 5 S.Ct. 135, 28 L.Ed. 729. The rank and authority of the courts are equal, but both courts cannot possess or control the same thing at the same time, and any attempt to do so would result in unseemly conflict. The rule, therefore, that the court first acquiring jurisdiction shall proceed without interference from a court of the other jurisdiction is a rule of right and of law based upon necessity, and where the necessity, actual or potential, does not exist the rule does not apply. Since that necessity does exist in actions in rem and does not exist in actions in personam, involving a question of personal liability only, the rule applies in the former but does not apply in the latter.” Thereupon, the Supreme Court refused in the Kline Case to uphold the issuance of an injunction to enjoin an action in personam in a state court, which had been ordered by the Court of Appeals of this Circuit. It was held by the Supreme Court, in the case of Ex parte Baldwin, 291 U.S. 610, 54 S.Ct. 551, 78 L.Ed. 1020, that mandamus to compel a federal District Court to assume jurisdiction in a certain action arising out of a railroad reorganization proceeding should be denied, because any interference with the jurisdiction of the bankruptcy court could be prevented by an injunction. See, also, Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645. But obviously the above two cases have no application in a case — 527 — wherein no property is in the custody of the federal court, as clearly pointed out by the quotation last above from the Kline Case, supra. If, as we think, an injunction will not lie to restrain the 16 plaintiffs in the Storley case from further prosecution of their actions for damages pending in the state court, we know of no adequate remedy either in equity or law save mandamus by which petitioner may protect the jurisdiction of the federal court in a case which has been tried to the stage of an interlocutory decree. True, it is that the plaintiff in an action in equity or at law has ordinarily the right to dismiss or discontinue his case, at least at any time prior to submission, in the absence of any counterclaim on defendant’s part. And so it follows that a defendant should ordinarily not be heard to complain that a plaintiff has abandoned or dismissed his demand or any part of his demand. But the rule as to the right to a dismissal or discontinuance of the jurisdiction does not rest alone with a plaintiff, the defendant also has or may have acquired by the situation some rights in the premises. So, the general rule is thus stated in 14 Cyc. 406: “While a plaintiff may dismiss any claim where such dismissal will not prejudicially affect the interests of defendant, he will not be permitted to dismiss, to discontinue, or to take a nonsuit, when by so doing he will obtain an advantage and defendant will be prejudiced or oppressed, or deprived of any just defense.” The point above is mentioned only as analogous, because the plaintiff ordinarily is the party who is interested in preserving jurisdiction, and because in McClellan v. Carland, supra, mandamus issued on the petition of a plaintiff. Here, the case had been tried and findings of fact and conclusions of law had been made by the respondent. Some of these, petitioner urges, were favorable to it, and it deserves and is entitled to retain the advantage of them not only as to such plaintiffs as were retained in the Storley case, but as to those who were by respondent relegated to the state court for the assessment of their damages. So, it seems to us that petitioner, though defendant in the case of Storley, would be put at a disadvantage, if jurisdiction be abdicated, for that in such case it would be deprived as to the 16 of any reliance on the court’s findings of fact and conclusions of law and of a possible assessment of a final lump sum as damages in their several favors, in lieu of a permanent injunction, Harrisonville v. Dickey Clay Co., supra, and, therefore, petitioner, though defendant in the case, is entitled to urge the retention by respondent of jurisdiction. We see no reason why in such situation a defendant may not urge that mandamus issue. Since, in principle, we are not able to distinguish the case at bar from the case of McClellan v. Carland, supra, we feel constrained by that case to hold it to be the duty of respondent io retain in the Storley case the cases of Ecklund and others above named, and to exercise the same jurisdiction over them as to the assessment of damages in the lump sum in lieu of a permanent injunction or otherwise as he shall over all other plaintiffs therein, and to that end petitioner is entitled to have the writ of mandamus for which it prays. We feel sure, however, that we need not presently issue the definitive writ therefor, and so issue thereof will be deferred till such time as petitioner shall be advised to file a motion therefor. Mandamus granted without costs to either party, issue of writ to await the further order of this.court.