City of Ashland v. Whitcomb

98 N.W. 531, 120 Wis. 549, 1904 Wisc. LEXIS 112

• Court: Wisconsin Supreme Court
• Decided: February 23, 1904
• Status: Published

Opinion

Siebeckee, J.

The questions raised upon this appeal were presented to this court on a former appeal, April 1, 1902. 114 Wis. 99, 89 N. W. 886. The jurisdictional question involved was not determined, because not properly before the court, upon the record as it then stood. It was therein decided that the order striking a case from the calendar upon the ground that it appeared that the action is pending before a federal court, and that the state court has no jurisdiction, is a determination that the trial of the case cannot be prosecuted to judgment in the state court. The order was held appealable, because it affects a substantial right, and does, in effect, determine the action, and prevent a judgment from which an appeal might be taken. From the statement of facts, it now appears that the United States circuit court for the western district of Wisconsin has assumed and retains jurisdiction of this cause, and that the action is now pending in that court. It is undisputed in this case that respondents were receivers of the railway, and had possession of its property, before this action was commenced, upon an order or decree in a proceeding of the federal court. By this proceeding the federal court assumed administration of the railway company’s property and held possession and control through the receivers, as its officers, for the purpose of applying it to the benefit of persons whom it may adjudge entitled thereto. Bespondents are sued in their capacity as receivers, and the right to the possession of the railway company property is involved in the issues of the case. Under these circumstances, the federal court has determined and assumed jurisdiction of the subject-matter of the action, involving the possession of this property. That the state courts will respect its determination under such circumstances is clearly established and fully recognized in Northern Pacific R. Co. v. McMullen, 86 Wis. 501, 56 N. W. 629, and State ex rel. Atty. Gen. v. Frost, 113 Wis. 623, 88 N. W. 912, 89 N. W. 915. In the last case, upon an exhaustive review of the adjudications, Mr. Justice Dodge states the rule to be:

“The ultimate authority to decide finally and conclusively upon the jurisdiction of a federal court, or upon the validity of one of - its decrees or of a federal statute, is in the federal courts, and the consideration of such validity must be yielded up by the state courts in any case covered by the federal removal statutes.”

Since the federal court has assumed jurisdiction of the action, and the cause is still pending there, the circuit court of Ashland county properly held that no proceedings could be taken therein.

By the Court. — The order is affirmed.