
    No. 386
    No. 19846
    The State, ex rel. Crabbe, Att’y Gen’l., v. The Indiana, Colubmus & Eastern Traction Co.
    In Quo Warranto.
    985. QUO WARRANTO — Where, in an action to oust street railway company because of violation of city franchise pleadings show that the property of said company was in the hands of Federal receiver, the state courts lose jurisdiction and the acton beng based on violations after federal court assumed control, the action will not lie.
   JONES, J.

An action in quo warranto was instituted in a state court for the purpose of forfeiting the charter of an .interurban traction company and of ousting it from its corporate franchises, incluidng its right to operate within certain city limits, for the reason that the corporation had, under express provisions of the local city franchise, forfeited the same together with its right to operate within said city. In the action it was developed by the pleadings and proof that, prior to the bringing of the quo warranto suit, the property of the traction company had been placed in the custody of a Federal court in a foreclosure proceeding and that the same was in the possession of and was being operated by a Federal receiver under the decrees of that court.

HELD: 1. Under the case presented a judgment of ouster from operation under the local city franchise or the appointment of a receiver by the state court would in effect interfere with and disturb the jurisdiction and custody of the Federal court; and that court having obtained prior jurisdiction and custody of the corporate property, such property and the method -of its operation is withdrawn from the jurisdiction of the state courts.

2. The gravamen of this action, as presented, is based upon a forfeiture by the traction company because of the latter’s non-compliance with express provisions of a local city franchise relating to street paving and street car service. The record does not disclose any default upon the part of the corporation with respect to those provisions prior to the time the Federal court assumed jurisdiction over the corporate property and its method of operation. The alleged non-compliance with the terms of the local franchise was caused, not by the act of the corporation but by the Federal court after it assumed jurisdiction. For that reason a writ of ouster as prayed for should not issue.

Writ denied.

Marshall, CJ., Day, Kinkade, Robinson and Matthias, JJ., concur.  