
    BENESCH v. FOSS.
    District Court, D. Massachusetts.
    March 8, 1929.
    No. 3081.
    Martin Witte and Edward R. Hale, both of Boston, Mass., for plaintiff.
    Horatio Alden, of Boston, Mass., for defendant.
   MORTON, District Judge.

This matter was heard on March 1, 1929, on Beneseh’s petition for a motion for a temporary injunction to restrain the defendant from entering in the state court a writ which he had there taken out against Beneseh, the ground of the petition being that said writ had been served in violation of the petitioner’s rights while he was attending as a defendant in this court. At the conclusion of the arguments I gave judgment orally in substance as follows:

The present defendant agrees that the facts are as stated in the petition, i. e., that the petitioner came into this district voluntarily to answer to an indictment found against him here, and while waiting in the corridor outside of this courtroom to be arraigned on said indictment was served with process in the suit in the state court. At that time this court had issued no writ of protection to the petitioner. One was issued immediately afterwards to take effect retroactively, nunc pro tunc. I have great doubt whether it had any effect on the service which had been made and disregard it. U. S. v. Bridgman, Fed. Cas. No. 14,645, fully covers the present ease. It was there held that the service was invalid. The same conclusion was reached in Kaufman v. Garner (C. C.) 173 F. 550, and in Dwelle v. Allen (D. C.) 193 F. 546. In the last two cases the curious divergencies of reasoning by which the result is supported and the inconsistencies in the decisions are pointed out. The cases referred to and other similar ones which might be cited leave no doubt that under the federal law the service of the state court writ under the conditions stated was an infringement upon the defendant’s rights and perhaps also upon the province of this court.

I have considerable doubt whether the present petition is the proper way to raise the question. The defendant agrees, however, that if the matter is justiciable in the federal courts, as I have no doubt it is, no question is made on the pleadings. This being so, an order will be entered enjoining the present defendant from entering the state court writ unless the return of service on it is first cancelled.  