THIC 11. G. LEONARD.

415

It there was any sheer to port by the barge shortly betore the co1llslon, the evidence does not warrant the finding ot any negligence on the part of the barge as the cause ot it. All the witnesses who testified on the subject express the oplnfon that it was the force of the North river ebb upon the stern of the barge, as her bows entered the slacker water to the eastward between the currents ot the North and East rivers, that caused the sheer they speak of; and they suggest ·thaJt It should have been counteracted by a port wheel on the barge. But tbe barge's evidence leaves no doubt thlllt her wheel was put hard a-po1"t; th8lt the wheelman put the wheel over as soon as he saw the pilot of the tUg port hfs wheel; and that additional men on the barge helped to keep the wheel hard a-port. The witnesses on the barge, moreover, deny that she sheered to port aJt all, but state that in fact the barge turned one or two points to starboard, although this was less than she would have turned under the same wheel but tor the torce ot the ebb tide on her stern as her bows went Into the slack water. Upon & careful conS'1dera:tlon ot all the testimony I am satisfied that the account ot the men on the barge Is sub9tAn1J1aJly true. I am persuaded that what the detendants' wi·tnestleS call a sheer was no sheer through any mistake In handling the wheel, and probably no real sheer at all, but only a rela·tive slowness In a change to starboard under a port wheel, by which, as compared with the position and more rapid swing of the tug Carroll Boys, there was such a difference In the pointing ot the barge and the tug as to give the witnesses the Impression that the barge sheered to port. The place where the collision occurred, taken In connection with the angle of collision and the heading of the schooner at the moment ot collision, tend strongly to confirm the statement of the Leonard's witnesses that there was no sheer at all to port, but that they merely came around slowly to starboard, on account of the stronger ebb current at their stern than at their bows. Nearly all the witnesses agree that the collision occurred In the slack water to the southwest ot the Battery wall, and the place ot collision Is pretty accurately fixed from the position ot the sunken schooner, which the witness Timmons testifies was about 600 teet trom the Battery wall and about 50 teet easterly trom a llne drawn trom the bath house (which Is between the barge office and Castle Garden) to the easterly side ot Liberty Island. This point was about three hundred teet to the eastward ot the line where the North river ebb Is sensibly felt, which, according to. the witness Windsor, is at that stage of the tide about on a llne trom the end ot pier 1 to a point on Governor's Island 300 teet easterly from the easterly side of Fort William. 'Considering that the hawser was 150 feet long and the barge 105 teet long; t!bat their progress was lilt the rate ot about three or tour knots through the water, and that they were heading, at the time when the signal ot one whistle was exchanged, nearly directly across the North river, and about tor the barge 01ll.ce, there can be no doubt that at the time when the whistles were exchanged the barge WI1S drawing very near to the slack water and very soon entered It, and that the. effect ot the gradual slackening of the current at her bows while the current at her stern was stronger was to retard the action ot her port whee).' The grellit majol"1ty ot witnesses do not place the angle ot collision at aboft five points, and the heading of the schooner at that time, according to the testimony ot the pilot of the Laughlin, must have been one or two points to the north ot a line from the to the Pennsylvania Railroad Ferry at Jersey City. An angle of five points tram thfs course would make the barge heading at least two or three points to starboard ot any possible course by whlC'h the and tow could have arrlvedotr Castle Garden from the Central Ferry in the ebb tide. The master of the schooner, however, says that at the time of collision he was heading towards the New York shore, above Castle Garden, and that the angle ot colllsion was seven points. This would make the heading ot the barge at the coll1slon about the same as the above; while It the heading ot the schooner Is correctly gIven by her master, and the angle of collision was only five points, the barge at collision must have turned to starboard about three to tour points trom the heading by which the river must have been crossed; and this Indicates that there was no actual sheer by the barge to port, but only a slower turnIng to starboard than ,the tug, giving the deceptive appearance of a sheer to persons upon other wovIng vessels. The Sam Sloan, 65 Fed. 125, and cases ther. cited.

tn,

SOFlIlDERAL REPORTER.

The two witnesses from shore ,who speak ot A sheetV did not see any actual sheer,and probably sPoke from the great divergence between the direction ot the tug and the barge. - The responsibility for the 00111sion seems to me to lle with the Carroll Boys alone. It was the Carroll Boys that was bound to keep out ot the way. When the signal ot one Whistle was given, Viz., when the tugs were from BOO to 500 feet apart, It became the duty ot the Carroll Boys not only, to keep to the right, as her whilitie Indicated she would do, but to keep far enough to the right, and to direct her tow to take that course early enough,' to prevent any. swing by the barge upon the course ot the Laughlln and the schooner, which were already quite near the shore. The 'barge was a long boat, and not .quickly handled like a tug. Her wheelman was not chargeable with knowledge- ot the tide currents to the same extent as the pilot of the tug, and cannot be charged with negligence for not porting until he had some notice that he was required to dO so, either by Sbmedirection from the tug or by seeing the tug port. He was watching the tug, and he ported as soon as he saw the tug port; and no signal at all was given to him by which he might have been apprised of the need ofportlngearller. The true cause .of the collision was that the Oarroll Boys delayed her own porting, and omitted signaling to the other tug, or to give directions to her own tow until it was too late for the tow to clear. She was gomg towards the Bide of the Eaet river for the benefit of the slack water there, and no doubt miscalculated or neglected to consider the' space necessary for the turn of the barge in going through the slack water. This evidently was a risk of the tug and not of the tow. I do not see any sufficient reason for charging the Laughlln with fault. The evidence seems to show that as soon as her pilot perceived that -t):Je barge 11"&11 not swlngIrlg to starboard as much as the tug, giving _the appearance of a sheer, he did all' he could do to prevent a collision between the barge and the sChooner,by putting hie wheel hard a-port, shouting to the schooner to do the same, and pulling to starboard full speed. This was the only chance of escape. Decree for the llbelant against the Carroll Boys, with' costs; dismissal of the libel as' against the barge and the Laughlin, with costs; and an order of reference to compute damages If not agreed upon.

the

Samuel Park, for appella.nt, The Carroll Boys. Nelson Zabriskie, for The M. G. Leonard. Lawrence Kneeland, fOT The M. E. Laughlin. Stewart & Macklin,' for Elizabeth Sweeney. Before WALLAOE, LAOOMBE, and SHIPMAN, Circuit Judges.

the witnesses. The testimony indicates quite clearly that they di;ffered greatly in, intelligence. While we do not in all respects agree with the theory of the movements of the vessels as set forth in his opinion, we concur in the cO'nclusion of the district judge "that the proximate cause of the collision was the navigation, of tbe Carroll Boys, which was evidently making for the left-hand side of the East river, and "miscalculated or neglected to consider the space necessary for the turn of the barge in going through the slack water" of the Battery. The decree of the district court is affirmed, with interest, and costs to the Leonard against the appellant.

to reverse the decision -of the district judge, who heard and saw

PEROURIAM. We do not find in the record sufficient reason

ZIMMERMAN V. SO RELLlIl.

417

ZIMMERMAN

T.

SO RELLE. April 26, 1897.)

(CIrcuIt Court of Appeals, Eighth CircuIt. No. 862.

I.

STATE FEDERAL COURTS - CONCURRENT SUITS BETWEEN SAME PARTIES FOR SAME CAUSE OF ACTION-QUIETmG TITI,E. .

Suits between the same parties to quiet title to the same land are of such nature that when ode is pending Ina state court, and the other in a fed· eralcourt, and the state court first acquIres jurisdiction by service of process,the federal court should stay its hand unt1l the cause In the state court kl determIned. But it should not dismiss the suit where the state court .leave some matters at Issue undetermined, which may prop.erly be adjudIcated by the fedeJ."lll court.
&

I.

EQUITY PI,KADING-BETTINa DOWN PLEA FOR ARGUMENT-DEMURRER.

The filing of a demUJ;,rer to a plea, Instead of setting the plea down for argument, Is contrary to equity procedure; but, If no substantial rights have been affected thereby, the Irregularity may be 19uored. The filing of the demurrer, therefore, may be treated as the equivalent of setting the plea down for argument, and an order overruIlng demurrer may be reo garded as, In effect, an order that the plea be allowed; and In such case the plaintiff will be entitled to then take issue with the facts stated In the plea. The former practice of referring to a master a plea: of the pendency of another suit between the same parties as to the same matter, Instead of letting It down for argument, 'has no appIlcation Where the former suit is not In the same court, but In one of a different jUrisdiction.

I.

EQUITY PtuCTICE-PENDENCY OF ANOTIlER SUIT.

of Colorado.

Appeal from the Circuit Court of the United States for the District

to state the averments of the bill In detail. It showed, substantially, that a controversy had arlsen between the parties to the SUit, relative to the ownershIp of certain real estate sItuated In the town of Aspen, Pitkin county, Colo., to wit, the southerly 75 feet of lots Rand S in block 88, which had at one time been sold by Zimmerman to So RelIe, and had thereafter been reacquIred by Zimmerman at a trustee's sale, 'under a power of sale contained In a deed of trust, that had been executed by So ReIle to secure the payment of a part of the purchase money; that In equity the property belonged to Zimmerman, al· though It WWl at the time In the possession of So Relle; that the complainant's title derIved through the aforesaid trustee's sale was defective, because the notice under which said sale had been made was not pubIlshed for the requl· site length of time; that, by virtue of such defect In the notice of sale, the complainant had not acquired at such sale a good legal title, under which a recovery could be had against the defendant by a suit In ejectment; that the defect In said notice of sale was due to the negligent and fraudulent conduct of the defendant, So RelIe, who was an attorney by profession; and that, by virtue of such fraud and negllgence, he was In law estopped from taking advantage of the defect in the plaintiff's legal title, and from further retajnlng possession of the property. In view of the allegations of the bill, the complainant prayed that "the defendant may be decreed to be forever estopped from setting up or claiming any right, title, or Interest whatsoever In and to saId premises, or from In any manner claiming that said foreclosure, and the I8le of .said property thereunder, was illegal or Insulficlent, and that your orator may be decreed to have a good and perfect title to said premises, - - .' IUld that any cloud may be removed which may rest upon the title otyour SOF.-27

ISo Relle, the appellee, In the circuit court of the United, States for the district of Colorado, on December 27, 1895. For present purposes, It Is unnecessary

This suit was brought by Eugene Zimmerman, the appellant, agaInst Wiley E.

_ _ _ _ _ _ _u

_

418

80

FEDERAr... REPORTER.

orator to the said property, by virtue of any defect In said foreclosure sale or In the notice thereof." To the aforesaid blll the defendant below filed the following plea:- "And this defendant further says: That at the time of the commencement of said suit, and at the time when service of the writ of subpoena issued thereunder was attempted or pretended to be made upon this defendant, another suit was, and at all times herein mentioned has been, and now is, pending In the district court of Pitkin county, state of Colorado (No. 1,718), between the said Eugene Zimmerman and the said Wiley E. So Relle, InvolvIng the same subject-matter, and wherein similar relief was sought. That the said suit in the said district court of Pitkin county was commenced by filing a: b1ll fu equity on the 4th day of October, 1895, and wherein said Wiley E. So Relle is plaintiff, and the said Eugene Zimmerman, the Mortgage Trust Company of Pennsylvania, and Biddle Reeves are defendants. That summons and complaint was served upon each of the said defendaIlts on the 5th day of October; A. D. 1895. That the subject-matter In said suit in said district court of Pitkin county is the title to the southerly seventy-five (75) feet of lots Rand B in block 88 of the town site and city of Aspen, In Pitkin county, Colorado. That the relief sought therein is to quiet the title of said premises in the said Wiley E. So Relle, and for general relief, by injunction and otherwIse. That on the 26th day of October, 1895, the said Eugene Zimmerman tiled therein a. notice of application to remove the said cause to the federal court, together with a petition and bond for removal. That on the 4th day of No,vember, 1895, the separate answer of the said Reeves and 'the said Mortgage & Trust Company of Pennsylvania was filed therein. That on the 4th day of November, 1895, the said Eugene Zimmerman filed a demurrer to the complaint therein. That on the 14th day of November, 1895, the said Wiley E. So Relle filed a motion to make the answer of Reeves and the said Mortgage & Trust Company of Pennsylvania more specific. That on the 18th day of November, 1895, said Zimmerman filed therein his motion to withdraw his demurrer.. That on the 12th day of December, 1895, a motion to dissolve an Injunction issued in said cause was heard and overruled. That on the 30th day of December, 1895, said Zimmertnan filed his separate answer therein. That on the 20th day of January, 1896, the said So Relle filed a demurrer therein. That on the 25th day of January, 1896, the said So Relle filed repl1cations to the answers of the said Zimmerman, Reeves, and the said Mortgage & Trust Company of Pennsylvania. That on the 28th day of January, 1896, the said Zimmerman filed his motion to strike out the said replication. That on the 8th day of February, 1896, the motion of said Zimmerman to strike out the said repUcatlon was heard and overruled by the said district court In said Pitkin county. That on Wednesday, the 13th day of November, 1895. a motion of the said Eugene Zimmerman to docket' the cause in the said district court of Pitkin county, and to file in the circuit court of the United States for the district of Colorado a transcript of the record from the said dIstrict court of Pitkin county, was heard by this honorable court, and, after the court was fully advised In the premises, the last aforesaid motion was overruled. That the said suit In the said district court of Pitkin county, Colo., Is stlll pending, and is now at Issue; and that adequate relief may be had by all parties therein. · · · Wherefore this defendant prays th9 judgment of this honorable court whether he ought to be required to aDpear in accordance with any writ of subpoena Issued In said suit." To the foregoing plea, the defendant below interposed a demurrer, on the ground that It did not I'ltate facts showing any reason why the suit might not be prosecuted by the plaintiff, and for the reason that the plea was uncertain, defective, and ambiguous in stating the matters alleged to be involved In the litigation pendIng in the district court of Pitkin county, Colo. The trial court overruled said demurrer, whereupon the complainant asked leave to file a replication to said plea, which leave was denied, and the bill of complaint was thereupon ordered to be dismissed. The present appeal was taken from such order of dismissal.

Robert G. Withers and Charles J. Hughes, Jr., for appellant. Before SANBORN and THAYER, Oircuit Judges, and LOCHREN, District Judge.

ZIMMERMA.N V. SO RELLlll.

419

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. . The plea which was filed by the defendant below, who is the appellee here, shows, we think, with sufficient certainty that the suit at bar and the suit previously brought in the district court of Pitkin county, Colo., by So Relle against Zimmerman, are substantially of the same character, the parties thereto being simply reversed. In the case pending in the state court So Relle is attempting to quiet his title against Zimmerman, who is claiming title to and possession of the premises in controversy by virtue of a trustee's deed, executed under a power of sale contained in a mortgage that was made by So Relle; while in the suit at bar Zimmerman seeks to quiet his title and gain possession of the property, by enjoining So Relle from asserting that the sale by the trustee was insufficient to pass the legal title. Both suits concern the same property, and necessarily involve a consideration of the same evidence and a decision of the same questions. Such being the state of facts disclosed by the defendant's plea, we think that the case pending in the state court was of such a nature that the trial court was not at liberty to proceed with the hearing of the suit at bar, within the doctrine which was recently applied by this court in the case of Merritt v. Steel.Barge Co., 79 Fed. 228. We held in that case that when a suit is brought to enforce a lien against specifio property, or to marshal assets, or administer a trust, or liquidate an insolvent and in all other cases of a similar kind where, in the progress of the case, the court may find it necessary or convenient to assume control of the property in controversy, the court which first acqhires jurisdiction of such a case by the issuance and service of pro· cess is entitled to retain it to the end, without interference on the part of any other court of co·ordinate jurisdiction. We held, further, that a rigid adherence to this rule, both by the federal and state courts, is necessary in order to prevent unseemly conflicts which might otherwise arise. The doctrine in question has been so recently and fully considered both in the case last referred to and in Gates v. Bucki, 12 U. S. App. 69, 4 C. C. A. 116, and 53 Fed. 961, that a further discussion of the subject seems to be unnecessary. It is manifest, we think, that the suit brought in the state court by So Relle against Zimmerman is of such a nature that that court may see fit at any time to issue an injunction against Zimmerman restraining him from prosecuting a suit to recover the possession of the property in controversy in any other forum, and we cannot doubt its right to make such an order; whereas in the case at bar, if the trial court had permitted it to proceed, it may be that at some stage of the proceedings it would have been found necessary to appoint a receiver of the property to collect the rents thereof, and otherwise care for it, pending the litigation as to the title. Possibly, the state court may deem it proper to make a similar order. The controversy, then, is of such a nature that the pendency of the two suits at the same time, in different jurisdictions, is liable at any moment to create a conflict of authority, and give rise to conflicting titles. No court ought to proceed with the hearing of a case under such circumstances so long as the prior suit remains pending and undetermined. We concede, as a matter of

420

so

REPORTER.

course, that two suits, involvipg the saItle questions and between the same parties, may Qe pending at the same time, the one in a state and the other. in a federal court, and that in such event a plea of lis pendens may not be available as a defense to the suit which was last brought. rI'his is always the case where the two suits are strictly in personam. Stanton v. Embrey, 93 U. S. 548. And in Orton v. Smith, 18 How. 265, it was said, in substance, although the question was not strictly involved in that case, that the pendency of a suit in ejectment in one jurisdiction will not serve to stay prosecution of a later suit in ejectment fo,: the same land brought in another court of co-ordinate jurisdiction. But when, as in the case at bar, two suits in chancery are pending between the same parties, the one in a state and the other in 'a federal court, the object of both suits being to quiet the title to the same tract of land, that court which first acquires jurisdiction by the issue and service of. process must be allowed to proceed with the hearing and determination of the case; and, so long as the first suit remains pending and undetermined, the action of the court in which it is pending should not be embarrassed by proceedings taken or orders made in the case which was last brought. Orton v. Smith, supra. It would be manifestly improper, however, to order a dismissal of a second suit because of the pendency of a prior suit between the same parties in those cases where the bringing of the second action was a necessary or proper step, either to create or preserve a lien, or to avoid the bar of the' statute of limi· tations, or to give due notice by lis pendens of the plaintiff's rights, or to guard against the results of a possible dismissal of the first suit before its determination upon the merits. Heidritter v. Oil-Cloth Co., 112 U. S. 294, 304, 5 Sup. Ct. 135; Gates v. Bucki, 12 U. S. App. 69, 4 C. C. A. 116, and 53 Fed. 961. In all such cases the proper practice is to suspend further action in the second suit until the first suit is tried and determined, instead of dismissing it. Indeed, considering the numerous reasons which may render it advisable and not improper to commence a second suit, although a prior suit is pending in which the plaintiff's rights may be fully adjudicated, we think it is the better practice in all cases to pursue the course last indicated, when a plea of lis pendens is interposed and sustained. The mere pendency of a second suit, if no action is taken therein, does not affect the orderly prosecution of the first suit; and the court is much better able to determine, after the first suit has ended, whether it Is necessary or proper to grant further relief in the action which was last brought. In our opinion, therefore, the trial court, when it overruled the demurrer to the plea, should have entered an order staying all further proceedings until the case in the state court was determined, instead of entering a final order of dismissal. It may be that the judgment of the state court will leave some matters at issue between the parties undetermined, which may properly be adjudicated by the federal court. If not, an order dismissing the action should then be entered. Complaint is further made that the trial court did· not allow the plaintiff below to file a reply to the plea, after the demurrer thereto had been overruled. With respect to this contention, it should be ob·