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of said issues, and in the enforcement of any decree which this court may render in the said suit so pending before it; and further prosecution of said actions, or either of them, as against your orator, would therefore be in derogation of the jurisdiction of this court and of the rights of your orator in the suit so brought by it in this court and now pending therein.”
All the cross-bills, so far as the Rickey Land & Cattle Company is concerned, relate to the same subject-matter which was brought before this court by the complaint of Miller & Lux in the original suit, and to the right of the defendant Rickey to take any water away from the river, as against its respective rights. The relief asked for is in relation to the same matter which was brought before the court in the original suit.
In view of what has already been said, it is unnecessary to take up seriatum the other cross-bills filed against the Rickey Land & Cattle Company. The truth is that the principles already announced show that, although there may be a difference in some of the facts, there is none in the application of the principles of law to all the cross-bills. They stand virtually upon the same plane, and are governed by the same rules.
The suggestion is made that this court has no jurisdiction of certain cross-bills because the parties thereto are citizens of the same state. This is without merit. "The cross-bills are all ancillary to the original suit of Miller & Lux v. Rickey et al. (No. 731). The principle is well settled that a cross-bill of this character is not an original suit, but is ancillary and dependent, supplementary, merely, to the original suit out of which it arises, and is maintained without reference to the citizenship or residence of the parties. It does not depend upon the citizenship of the parties, but on the subject-matter of the litigation. Krippendorf v. Hyde, 110 U. S. 276, 281, 4 Sup. Ct. 27, 28 L. Ed. 145; Morgan's Co. v. Texas Central Ry., 137 U. S. 171, 201, 11 Sup. Ct. 61, 34 L. Ed. 625; In re Tyler, 149 U. S. 164, 181, 13 Sup. Ct. 785, 37 L. Ed. 689; Root v. Woolworth, 150 U. S. 401, 413, 14 Sup. Ct. 136, 37 L. Ed. 1123 ; Broadis v. Broadis (C. C.) 86 Fed. 951, 954; Home Ins. Co. v. Virginia C. C. Co. (C. C.) 109 Fed. 681, 687.
The fact that some of the cross-bills were not filed until after the service of process was made upon the parties in the Mono county suits is wholly immaterial. The jurisdiction of this court does not in any manner depend upon the question as to the service of process in the Mono county suits. The only jurisdiction which this court is called upon to assert was obtained in the proceedings had in the suit of Miller & Lux v. Rickey et al. (No. 731), which was long prior to the commencement of the Mono county suits, as will hereafter more fully appear.
The affidavits filed by defendant, which upon the hearing hereof take the place of an answer, do not deny the issues made in the original suit (No. 731), nor do they deny that this court acquired jurisdiction of the person of the defendant Rickey years before the commencement of the actions in Mono county. They do not deny that said Rickey, pending the original suit, conveyed to the Rickey Land & Cattle Company the water rights which he was claiming, and by virtue of which he was defending the original suit, but they do deny
corporation is simply a change of name. The affidavit of Thomas B. Rickey states that Charles Rickey is, and at all times since the organization of this corporation has been, the owner of 100 shares, and that “Alice B. Rickey is now, and ever since the organization of said corporation has been, the owner of and entitled to all the rights, privileges, and profits growing out of one hundred shares of the capital stock of said Rickey Land & Cattle Company; that each of said persons, Charles Rickey and Alice B. Rickey, became owners of said stock by subscription to the capital stock of said corporation.” This affidavit does not state that they, or either of them, ever paid any value therefor.
By the institution of the original suit and the process of this court therein, this court acquired jurisdiction to hear and determine what rights the defendant Rickey had in the premises. These propositions are not denied in the affidavits filed on behalf of the Rickey Land & Cattle Company. So far as these affidavits are concerned, it stands admitted, because it is not denied that Rickey, pending the suit brought by Miller & Lux, and after his personal appearance therein, conveyed to the corporation known as the Rickey Land & Cattle Company the water rights which he was claiming to own, and by virtue of which he was defending the suit in question. The affidavits show that he is the largest, if not the sole, owner of the entire stock of this corporation. I shall not discuss this part of the transaction. The affidavits speak for themselves, and show what the transactions were. From the view I take of the legal controlling question herein, it matters not whether, in law or fact, Mr. Rickey himself was the sole owner of the entire stock of this corporation, and whether or not his wife and son were holding the small number of shares in their names for his individual benefit or their own.
Is it not true that the corporation, whoever its stockholders may be, has the same rights that Thomas B. Rickey had, no more, and no less ? It is not the name of the parties, but their situation and relation to the subject-matter of the original suit, which will fix their status in the present proceedings. It is not claimed that Thomas B. Rickey before he transferred his private property to the corporation could not have been enjoined from bringing the suits in Mono county to quiet his title to the flowing waters of the Walker river, which is the subject-matter of this litigation. But it may be said that he could not have brought such a suit because he was a party to the original suit of Miller & Lux v. Rickey, and that this court had acquired jurisdiction over his person and the subject-matter of that suit. It is true that the corporation is not a party to the original suit. It is not necessary that it should be made a party in order to authorize this court to grant the relief asked for.
In Mellen v. Moline Iron Works, 131 U. S. 352, 371, 9 Sup. Ct. 781, 33 L. Ed. 178, the court said:
“Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased
by them pendente lite. Eyster v. Gaff, 91 U. S. 521, 524, 23 L. Ed. 403; Union Trust Co. v. Inland Navigation & Improvement Co., 130 U. S. 565, 9 Sup. Ct. 606, 32 L. Ed. 1043; 1 Story's Eq. Jur. § 406; Murray v. Ballou, 1 Johns. Ch. (N. Y.) 566. As said by Sir William Grant in Bishop of Winchester v. Paine, 11 Ves. 194, 197: 'T'he litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them, it is as if no such title existed; otherwise, such suits would be indeterminable, or, which would be the same, in effect, it would be in the pleasure of one party at what period the suit should be determined. The present proceeding is an attempt upon the part of a purchaser pendente lite to relitigate, in an original, independent suit, the matters determined in the suit to which his vendor was a party. That cannot be permitted, consistently with the settled rules of equity practice.”
In 2 Black on Judgments, $ 550, relating to purchasers pendente lite, the author said: “It is a general rule that a purchaser of property,
* who buys pending a litigation concerning it, comes into privity with his vendor, so as to be bound by the judgment in that suit the same as if made a party of record. [Citing many authorities.] “We apprehend it is well settled that he who purchases property pending a suit in which the title to it is involved takes it subject to the judgment or decree that may be passed in such suit against the person from whom he purchases. That he purchased bona fide, and paid a full consideration for it, will not avail against such judgment or decree. Nor will he be permitted to prove that he had no notice of the suit. The law infers that all persons have notice of the proceedings of courts of record. The law is that he who intermeddles with property in litigation does it at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party to it from the outset'—citing Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858; 1 Story, Eq. Jur. $ 406, and other authoritie
* In a late case it is said that the purpose of the rule is to keep the subject-matter of the litigation within the power of the court until judgment or decree shall be entered, since, otherwise, by successive alienations pending the suit, the judgment or decree could be rendered abortive and impossible of execution. It is also said that two things seem to be indispensable to give effect to the doctrine of lis pendens: (1) That the litigation must be about some specific thing which must necessarily be affected by the termination of the suit; and (2) that the particular property involved in the suit may be so definite in the description that any one reading it can learn thereby what property is intended to be made the subject of litigation."
And observes :
"That the only office of a notice of lis pendens is to give constructive notice to, and to bind by the subsequent proceedings, those who may deal with the defendant in respect to the property involved in the action during its pendency and before final judgment; and no notice is necessary to make the judgment effectual as against parties claiming under the defendant by transfer subsequent to the judgment. The judgment disposes of the rights of the parties, is a matter of public record, and is conclusive both upon the defendant and any subsequent grantee. It is also conclusive, without such notice, upon a purchaser who has actual knowledge of the pendency of the suit."
In 1 Bates Fed. Eq. Pro. $ 541, the author, in discussing the question of injunctions issued to stay proceedings in state courts, and after quoting the provisions of section 720, Rev. St. [U. S. Comp. St. 1901, p. 581], said:
"It is well settled, upon both reason and authority, that the prohibition contained in this statute 'does not apply where the federal court has first obtained jurisdiction, or where, the state court having first obtained juris
diction, the case has been removed to the federal court. In such cases the federal court may restrain all proceedings in a state court which would have the effect of defeating or impairing its jurisdiction. It extends only to cases in which the jurisdiction has first attached. If the rule were otherwise, 'after suit brought in a federal court, a party defendant could, by resorting to a suit in a state court, defeat, in many ways, the effective jurisdiction and action of the federal court, after it had obtained full jurisdiction of person and subject-matter'”-citing Sharon v. Terry (C. C.) 36 Fed. 365, and numerous other authorities.
And in the course of the discussion quotes from Peck v. Jenness, 7 How. 612, 624, 12 L. Ed. 841 :
"It is a doctrine of law too long established to require a citation of authorities that where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court and the right of a plaintiff to prosecute his suit in it have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but in necessity. For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy ; being liable to a process for contempt in one if they dare to proceed in the other. Neither can one take property from the custody of the other by replevin or any other process, for this would produce a conflict extremely embarrassing to the administration of justice.”
In Starr v. Chicago Ry. Co. (C. C.) 110 Fed. 3, 6, the court said:
“(1) The federal courts must determine for themselves the limits of their jurisdiction, and the Supreme Court of the United States is the final arbiter in all questions of this nature. A renunciation of this power or a failure to discharge his duty would be fatal to our system of government. It would withdraw the keystone of the arch.
(2) Wherever a federal court and a state court have concurrent jurisdiction, 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. * * (3) The foregoing principle is so indispensable to the harmonious working of our systems of federal and state jurisprudence that neither the eleventh amendment to the Constitution, nor section 720 of the Revised Statutes, which prohibits the issue by a court of the United States of a writ of injunction to stay proceedings in any court of a state, can be permitted to interfere with its maintenance. The court which first obtains jurisdiction of the subject-matter and of the necessary parties to a suit may—and, if it discharges its duty, it mustif necessary, issue its injunction to prevent any interference by any one with its effectual determination of the issues, and its administration of the rights and remedies involved in the litigation.”
-And in support of these principles cites a vast number of authorities.
These general principles are too well settled to require further discussion. They have repeatedly been declared in suits and actions of various kinds by the highest court in the land, and announced in nearly, if not all, the federal courts, circuit and district, and in the various courts of appeal, wherever the question has been presented.
The object and purpose of the Rickey Land & Cattle Company in the commencement of the suits in question in Mono county, Cal., is to take to another court the questions which have long been, and still are, properly in litigation in this court, and this is sought to be done in order to forestall and nullify, if possible, any decision or decree
which this court may render regarding issues of which it first obtained full and complete jurisdiction. The impropriety and inadmissibility of such proceedings in the light of the established fundamental rules of our judicial systems is manifest. The suits in this court will quiet and settle the title or rights of the respective parties to the flowing waters of Walker river. The enforcement of the rule that the court which first takes jurisdiction of the parties and subjectmatter of a suit must retain and exercise it to the exclusion of any and all proceedings in other courts until its jurisdiction is exhausted by the final judgment or decree is absolutely essential to the due and proper administration of justice. This duty it owes to itself, as well as to the litigants, in seeing that its own jurisdiction is not impaired. The litigants have the right to have the case tried in the court where jurisdiction was first obtained, and should not be harassed or annoyed, or compelled to go to another court, and there try the identical questions which will properly arise in the court where the suit was originally commenced and is still pending. Such a rule, properly applied, should be rigidly enforced, not only to prevent unseemly conflicts in the courts, but to protect the litigants who are properly before this court.
The several demurrers interposed by the Rickey Land & Cattle Company to the bills in equity and cross-bills are overruled.
The injunction pendente lite, as prayed for against the Rickey Land & Cattle Company, is granted.
GARSIDE V. NEW YORK TRANSP. CO. (two cases).
(Circuit Court, S. D. New York. July 3, 1906.) 1. HIGHWAYS-CONTRIBUTORY NEGLIGENCE-PERSON CROSSING FROM STREET
CAR TO CURB—QUESTION FOR JURY.
A passenger alighting from a surface street car is not bound, as matter of law, to look in both directions along the street before starting to cross the space between the car and the curb, but the question whether the failure to so look constituted negligence is one of fact, to be determined by the jury under all the conditions and circumstances shown by the evidence.
[Ed. Note.-For cases in point, see vol. 25, Cent. Dig. Highways, $$ 460,
473.] 2. SAME-INJURY TO PERSON ON STREET-ACTION FOR DAMAGES.
Plaintiff alighted from a street car, and after taking two or three steps was struck and injured by defendant's automobile. Her testimony was that when she stepped off she looked along the street in front of the car, and seeing no vehicles approaching started to cross diagonally to the curb at the crossing, which was a short distance behind the car, when the automobile caught her dress, and pulled her down backward and ran against her. The machine had just crossed in front of the car from the opposite side of the street, which was obstructed, and came behind plaintiff. Defendant contended that plaintiff started to cross the track behind the car, and, meeting another automobile which was following the car, stepped backward in front of the machine, which struck her. The speed of such machine was in dispute. Held, that such issues of fact required the submission of the case to the jury; that accepting defendant's contention as correct, plaintiff was not necessarily chargeable with contributory negligence, and, even if so, it would not prevent her recovery if the driver of