
    Richard Schell vs. The Erie Railway Company and others.
    The Supreme Court of one judicial district, has no jurisdiction in an action pending in another district, to grant an injunction order, to restrain proceedings, in an action previously commenced and then pending in the district first mentioned. If such an injunction order is obtained it is void, and may be disregarded.
    The theory that by bringing another suit, and simply laying the venue in a different county from that in which an action is already pending, the court can be divided up so as to enable one branch of it to enjoin suitors from proceeding in another branch, is entirely inconsistent with the existence of but one court which the constitution created. That court, in the very nature of things, has no power to enjoin a suitor in it from asking to be heard; and every attempt to do so, is void. Fer Caedozo, J.
    In an action brought in the Supreme Court by S. against a railway company, an injunction order was granted by a justice of the first district. Subsequently the railway company brought an action, in the same court, against S. and others, laying the venue in a county in the eighth district, and obtained from a different justice of the first district an injunction order stopping all proceedings in the action of S., restraining the clerk of the court from entering an order made by one of the judges, and forbidding the prosecution of S.’s suit, and other suits by him and others named, and directing that any person who might thereafter bring an action of the like nature, or intended to accomplish the same object, should, upon notice of such injunction order, desist and refrain from further prosecuting the same. Held, that the granting of the second injunction order was not a valid exercise of judicial power, and the order was void.
    THIS is an appeal from an order made on the 19th of March, 1868, by Justice Barnard, appointing a receiver. The action was commenced, originally, against some of the defendants; afterwards, on the 14th of March, ] 868, an order to show cause was granted, returnable forthwith, why a supplemental complaint should not be filed, and why a receiver should not be appointed of the proceeds of fifty thousand shares of stock, &c. These papers' were served on Mr. Skidmore one of the defendants, and a director of the Erie Railway Company, in court, and the motion was immediately brought on, and no one appearing to oppose, was granted, and a receiver was appointed. Previous to the hearing of this motion, a suit had been
    
      commenced in another district, upon which an injunction was obtained, restraining among others, this plaintiff from proceeding with his action, and from obtaining any appointment of a receiver therein. This injunction was served on Schell, on the 18th of March, as appeared by the affidavit. On the 16th of March, 1868, an order was made by Justice Barnard, founded on the order of Justice Clerke, requiring the Erie Bailway Company to show cause on the 19th of March, before him, why the appointment of the 14th of March should not then be perfected, and a further order made as to the receiver, and why the order of Justice Clerke should not be vacated. Upon the return of this order, the order of 19th of March was made, deciding that the order of Justice Clerke should not be held to stay the plaintiff’s proceedings ; that the motion to vacate the appointment of a receiver be denied; and that the stay of proceedings in the order of Justice Clerke should be vacated. He also gave the plaintiff leave to file a supplemental complaint, ordered the appointment of a receiver, and made other provisions as to security and accounting. From this order the defendants appealed to the general term.
    
      Jno. E. Burrill, D. D. Field and Jas. T. Brady, for the appellants.
    
      Chas. A. Rapadlo and Chas. O' Conor, for the respondents.
   Cardozo, J.

The opinion of Mr. Justice Ingraham, concedes that “the only difficulty in the way of sustaining” the order made by Mr. Justice Barnard on the 19th of March, “ is the order of Mr. Justice Clerke in the case of the Erie Railway Company and Whitney v. Vanderbilt,” and therefore, although I have considered the whole case, it will only be necessary for me to express my views upon this one matter, to show that in my judgment the order appealed from should be affirmed.

I am of opinion that the order of Judge Clerks was absolutely void, and consequently that anybody might lawfully disregard it.

The plaintiff in this case brought his action in this court against the Erie Railway Company and others and obtained an injunction from Justice Barnard, in this district. After various proceedings in the action, the Erie Railway Company and Whitney brought a suit against Mr. Schell and others, laying the venue in Steuben county, .and obtained from Justice Clerks of this district an injunction stopping the cause of the plaintiff—restraining the clerk of the court from entering an order made by one of the judges, and not only forbidding the prosecution of this and other suits by this plaintiff and others named, but directing that any other person who might thereafter bring an action of the like nature, or intended to accomplish the object sought to be obtained by this suit, should, upon notice of that order of injunction, desist and refrain from further prosecuting the same". An injunction which, whether considered with reference to the singularity and extent of its. provisions, or the circumstance of it being issued by a judge of this district in an action triable in Steuben county, I venture to assert has no precedent in the books. I do not stop to inquire why those who wished to bring an action in.Steuben county were not told to go to that district for any preliminary order, instead of having it granted to them by a justice of this district. Certainly that would have been the ordinary course—it having hitherto been considered that the justices in this district had quite enough occupation, without interfering in suits triable in other districts; and a departure from the general practice might reasonably provoke remark and inquiries, which however, I do not deem it right or worth while to pursue. The real question is, was that injunction a valid exercise of judicial power, or was it a void act? Ro such jurisdiction was exercised by the court of chancery in this state, in respect to a cause pending in that court. This question was pointedly presented and determined in two cases. (Smith v. American Life Insurance and Trust Company, Clarke Ch. 307. Lane v. Clark, Id. 309.) In laying down the rule that an injunction would not be granted by the court of chancery to stay a suit in that court, Vice Chancellor Whittlesey, in the case first above mentioned, said: “ If a contrary rule should be adopted, it would be difficult in some cases to foresee any termination to litigationan apprehension which the present extraordinary proceedings shows was very well founded. The.vice chancellor further said, and I cite it to show how unnecessary the course pursued in this ease was, and how simple the proper procedure would have been, “ this rule will not work any injury. A party, privy, or even a stranger to the pending suit is not without redress. . He may apply by petition in the original cause, for such an order as the case made by his petition will entitle him to.” Again, in Lane v. Clark, (supra,) the vice chancellor said: “Proceedings in this court will not be restrained by injunction issuing out of this court upon a new bill, whether filed by a party, privy, or stranger to the old bill. The only mode is to apply by petition, for an order.”

The jurisdiction of the court of chancery to restrain proceedings in other courts, acting of course upon the parties to the litigation and not the courts, is undoubted; but that is a very different thing from enjoining the parties from prosecuting the suit in the court of chancery itself. Such an absurdity—as in effect to enjoin itself—the cases above cited show that the court of chancery in this state would not commit.

The question of the jurisdiction of one court to enjoin proceedings pending in another, arose in the Superior Court of this city, after the adoption of the constitution of 1846, in the case of Grant v. Quick, (5 Sandf. 612,) Judge Duer said: “The only ground upon which the court of chancery formerly acted in granting an injunction in cases like the present, was the inability of the court of law in which a suit was pending, to grant the necessary relief; but as since the Code, the jurisdiction of all our courts is equitable as well as legal, or more properly, as the distinction between legal and equitable, except in reference to the nature of the relief demanded, is now abolished, the reasons by which the exercise of a power, always invidious, and frequently abused, could alone be justified, have ceased to exist, and have left a case to which the maxim emphatically applies-“ cessante ratione, cessat etiam lex.” He proceeds to show that the court of common pleas in which the action sought to be enjoined was pending, had complete power to give relief to the parties, and then says: “The previous jurisdiction which that court has acquired, I have no right and will not attempt to disturb.” This case decides that the necessity for the exercise of the right to enjoin a suit in another court having ceased, the law—the jurisdiction—to do so also ceased. And that case was communicated by Judge Duer to the judges of the Supreme Court in the first district, the judges of the court of Common Pleas and to the judges of the Superior Court at a consultation held by all of them, and unanimously approved. It will be difficult for the courts thus concurring, to maintain-that jurisdiction exists, any longer, in one court to enjoin the proceedings in a suit in another court having full power to hear and determine the whole litigation, and to protect the rights of all parties connected with it.

This really disposes of the present case; for there can be no pretense that the Supreme Court, from the moment Mr. Schell’s suit was commenced, had not full jurisdiction; and indeed it is that very jurisdiction which is sought to be invoked by the parties who obtained the injunction from Judge Clerks.

The constitution of 1846, designing to blend legal and equitable remedies within one jurisdiction, abolished the court of chancery and created one court termed the Supreme Court, having general jurisdiction at law and in equity; consisting of many judges but all constituting but one court; and when either judge acts judicially the court acts. In that court Mr. Schell brought his suit, against the Erie Railway Company and others, and an injunction which should prevent his appearing at the bar of the only tribunal to which he could apply for relief, would be, as it was aptly termed by the distinguished counsel for the respondents “a monster in jurisprudence.” Every body interested could, on motion, have been made a party to the suit brought by Mr. Schell, and all the relief that any one was entitled to could have thus been obtained. The theory that by bringing another suit and simply laying the venue in a different county, the court could be divided up so as to enable one branch of it to enjoin suitors from proceeding in another branch of it, is entirely inconsistent with the existence of but one court which the constitution created. That court, in the very nature of things, has no power to enjoin a suitor in it from asking to be heard, and every attempt to do so is simply and only void.

The idea that a cause by such maneuvers as have been resorted to here, can be withdrawn from one judge of this court and taken possession of by another; that thus one judge of the same, and no other power, can practically preventhis associate from exercising his judicial functions; that thus a case may be taken from judge to judge whenever one of the parties fears that an unfavorable decision is about to be rendered by the judge who up to that time had sat in the cause; and that thus a decision of a suit maybe constantly in definitely postponed at the will of one of the litigants, only deserves to be noticed as being a "curiosity in leral tactics, a remarkable exhibition of inventive genius and fertility of expedients to embarrass a suit, which this extraordinarily conducted litigation has developed.

For these, among other reasons, I think the injunction of Justice Clerke absolutely void, and no impediment to the order of Justice Barnard.

I have not overlooked the remark of the eminent senior counsel for the appellants, that “ the due order of judicial proceedings is involved.” I really think it is. bio one, who reviews the proceedings in this litigation, can fail to see that unless the view I have taken of the question be sound, almost endless litigation and inextricable confusion may be created in nearly every case of any importance; and above all that if judges of the same court, instead of leaving each case to its “ due order of proceedings,” shall countenance efforts to circumvent and- defeat the orders and decisions of each other, the court itself will soon justly forfeit the confidence of the public, fall into disrepute, and its usefulness be seriously impaired, if not wholly destroyed. Such a practice as that disclosed by this litigation, of judges sanctioning attempts to counteract the orders of each other in the progress of a suit, I confess is new and shocking to me. It had no existence in the practice of the court of which I was recently a member, where the judges are not only gentlemen, having confidence in each other, never ascribing improper motives in judicial action to either of their associates, and never permitting any one to impute such to either before the other, but are scrupulously careful that the conduct of every legal proceeding shall be “ due and orderly;” and I trust that we have seen the last, in this high tribunal, of such practice as this case has exhibited. Uo apprehension, real or fancied, that any judge is about either innocently or willfully, to do a wrong, can palliate, much less justify it. For any such wrong, there are abundant means of redress and to those, unaided by judges in such artifices as have been attempted in these proceedings, everybody should be left to resort.

The order appealed from should be affirmed.

Geo. G. Barnard, J. concurred.

Ingraham J. (dissenting.)

The views I entertain of the proceeding in this case render an examination of the merits unnecessary, on this appeal.

The first order, of the 14th March, does not appear to be relied on for sustaining the appointment of the receiver. It was made in court, on an order issued there, and served on a director in court, who was at that time in the custody of the sheriff, and who could not therefore have the opportunity to confer with the officers of the company, or prepare the necessary papers, or adopt any measures to show cause against the application. Such a service cannot be considered a proper service upon the company. "When the law provides for serving papers on any officer of a company, it must intend that a reasonable time shall be allowed such officer to place the papers in the possession of those whose duty it is to protect the company from the measures intended to be taken against it. Without such time, it is evident that any company may be deprived of its rights and property.

I do not mean to deny that a judge may not in a proper case, make an order returnable before him forthwith, when the parties are before him and can be then served, but under ordinary circumstances such a course of proceeding is not desirable.

This order, however, was not relied on, and the order of the 16th March, appears to have been made for the purpose of perfecting the appointment of the receiver then made. On the return to this order, the order appealed from was made. BTo objection is made to want of notice on this last motion,, and the only difficulty in the way of sustaining it is the order of Justice Clerks in the case of The Erie Railway Company and Whitney v. Vanderbilt and others.

This order stayed the plaintiff’s proceedings, and if not properly vacated, all such proceedings were irregular and should be set aside. The order of Justice Barnard to show cause why the stay of proceedings should not be vacated, would have been sufficient to justify him in vacating such stay, if the action had been in this district; but there is nothing in that order which warranted the portion of 'the order of the 19th March, which denied the motion founded on the order to show cause, granted by Justice Clerks. hTo such object was contemplated by the order to show cause, of 16th March, but a mere modification of the stay of proceedings therein contained.

The great difficulty, however, lies in the fact that the action in which that injunction was granted, was brought in the seventh district. In all actions triable in any other district than the first, the judges of this district have no authority to hear motions within the first district. The 401st section of the Code, subdivision 4 provides that “ motions upon notice must be made within the district in which the action is triable, or in a county adjoining; and no motion upon notice, can be made in the first judicial district, in an action triable elsewhere.” This section forbids the hearing of any such motion in this district, in an action pending in the seventh district, and would make the decision on that order a nullity.

Two grounds are relied on to take this out of the above provision. One is that the order of Justice Clerks staying the plaintiff’s proceeding may be disregarded by the cou rt when the case is before them; and the other that such an order staying proceedings in another action pending in the same court, is irregular and without any force. I think neither ground is sufficient. The court may disregard such an order, if on hearing a cause, it should see fit to do so, although as between judges of the same court, such a course of proceeding is not desirable. But the party to the suit is enjoined, and not the court. Such party has no right to apply for any order while the injunction is in force, except to vacate it, and the power to vacate it did not rest with a judge in the first district. He still remains subject to its restraint, and any application by him, in violation of it, makes his proceeding irregular. Such injunction acts, not upon the court, but on the party. (N. Y. and N. Y. Railroad Company v. Schuyler, 17 How. Pr. 464.) Even if erroneously granted, the injunction should be obeyed, until vacated. (The People v. Sturtevant, 5 Seld. 263. Moat v. Holbein, 2 Edw. 188. Peck v. Yorks, 32 How. Pr. 408.)

[New York General Term,

April 6, 1868.

Geo. G. Barnard, Ingraham and Cardozo, Justices.]

It is also suggested that it was irregular in Judge Clerks, to stay proceedings in another action in the same court. Whether it be so or not is not necessary for me to decide. The experience in this litigation shows that it does not tend to a due administration of' justice. There would have been no difficulty at first for the defendants to do as they did on this motion now under consideration, to have appealed from the first order that was made, and obtained a stay in the mean while. Such a course would have protected all the parties, and avoided much of the confusion which has arisen from conflicting orders obtained from different judges in the same court.

This order having been made while the injunction was in full force in the action brought by Whitney, and that injunction still remaining in force, made the act of the plaintiff in this suit, in applying for a receiver, irregular and the order should on that account be reversed.

Order affirmed.  