TRIEBER, District Judge.
Under our system of government, actions in which there is a diversity of citizenship between the plaintiff and defendant may be prosecuted either in the state or national courts. While both courts are practically governed by the same rules of law, yet, having been created- by different sovereignties, they are foreign to each other. These courts are of equal dignity, and possess concurrent jurisdiction. Upon principles of comity, and to prevent an unseemly conflict between these courts, the second congress of the United States, by way of amendment to the judiciary act of 1789, enacted that no writ of injunction shall be granted by a national court to stay proceedings in any court of a state. Section 5, Act March 2, 1793 C1 Stat. 335). This provision, with some amendments, which are not material to this action, has been in full force ever since, and is section 720 of the Revised Statutes. As a matter of fact, this act is merely declaratory of a rule of comity which has governed courts from time immemorial. In Peck v. Jenness, 7 How. 612, 624, 12 L. Ed. 841, the court say:
“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 on necessity; for, if one may enjoin, the other may retort by injunction, and thus the parties be without remedy, being liable to 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 the case of Kennedy v. Earl of Gassilis, Lord Eldon at one time granted an injunction to restrain a party from proceeding in a suit pending in the court of sessions of Scotland, which, on more mature reflection, he dissolved, because it was admitted, if the court of chancery could in that way restrain proceedings in an independent foreign tribunal, the court of sessions might equally enjoin the parties from proceeding in chancery, and thus they would be unable to proceed in either court. The fact; therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum.” 7 How. 624, 625, 12 L. Ed. 841.
Of course, it does not apply to suits commenced in the state courts after proceedings had been instituted in the national courts. Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497; Fisk v. Railroad Co., 10 Blatchf. 518, Fed. Cas. No. 4,830. It is a rule of universal application, even in the absence of a statute, that, between courts of concurrent jurisdiction, the court which first acquires jurisdiction of the controversy or of the res should be permitted to retain it until the controversy is decided, and the res discharged from its control. [402]*402Mr. Justice Campbell, in speaking for the supreme court in Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028, said:
“It forms a recognized portion of the duty of this court to give preference to such principles and methods of procedure as shall serve to conciliate the distinct and independent tribunals of the states and of the Union, so that they may co-operate as harmonious members of a judicial system coextensive with the United States, and submitting to the paramount authority of the same constitution, laws, and federal obligations.” 20 How. 595, 15 L. Ed. 1028.
The authorities on this question are so numerous, and there is so little conflict among them, that it is unnecessary to make copious quotations from them, or cite many of them. A few, which are most in point, will suffice. Ableman v. Booth, 21 How. 506, 16 L. Ed. 169;. Buck v. Colbath, 3 Wall. 334, 18 L. Ed. 257; Haines v. Carpenter, 91 U. S. 254, 23 L. Ed. 345; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390; Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. 403, 42 L. Ed. 807; U. S. v. Parkhurst-Davis Mercantile Co., 176 U. S. 317, 20 Sup. Ct. 423, 44 L. Ed. 485; Gates v. Bucki, 4 C. C. A. 116, 53 Fed. 961; Phelps v. Association, 50 C. C. A. 339, 112 Fed. 453; Whitney v. Wilder, 4 C. C. A. 510, 54 Fed. 554.
Probate courts in the state of Arkansas are constitutional courts of record, with exclusive jurisdiction over the estates of deceased persons. Article 7, § 34, Const. Ark. Upon the appointment of the administrator by the probate court, all the personal estate of the intestate immediately vests in the administrator as the agent of the court, and for the payment of debts the statute specially provides that “lands shall be assets in the hands of the executor or administrator and shall be deemed in their possession and subject to their control for the payment of debts.” Section 80, Sand. & H. Dig. Ark.
In Whitney v. Wilder, supra, it was sought by the legatee to enjoin an administrator, acting under the authority of the probate court of Louisiana, from distributing funds to the heirs at law, but the circuit court of appeals for the Fifth circuit, reversing the court below, held that:
“Tbe probibition of this statute [section 720, Rev. St.] extends to all cases over which the state court first obtains jurisdiction, and applies not only to injunctions aimed at the state court itself, but also to parties before the court, its officers or litigants therein.”
In Haines v. Carpenter, supra, Mr. Justice Bradley, speaking for the court, says:
“In the first place, the great object of the suit is to enjoin and stop litigation in the state courts, and to bring all litigated questions before the circuit court. This is one of the things which the federal courts are prohibited from doing. By the act of March 2, 1793, it was declared that the writ of injunction shall not be granted to stay proceedings in a state court. This provision is repeated in section 720, Rev. St., and extends to all cases except where otherwise provided by the bankrupt law.” 91 U. S. 257, 23 L. Ed. 345.
Counsel for the complainant insist that the rule established in Johnson v. Waters, 111 U. S. 640, 4 Sup. Ct. 619, 28 L. Ed. 547; Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. 237, 32 L. Ed. 630; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870; Robb v.
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TRIEBER, District Judge.
Under our system of government, actions in which there is a diversity of citizenship between the plaintiff and defendant may be prosecuted either in the state or national courts. While both courts are practically governed by the same rules of law, yet, having been created- by different sovereignties, they are foreign to each other. These courts are of equal dignity, and possess concurrent jurisdiction. Upon principles of comity, and to prevent an unseemly conflict between these courts, the second congress of the United States, by way of amendment to the judiciary act of 1789, enacted that no writ of injunction shall be granted by a national court to stay proceedings in any court of a state. Section 5, Act March 2, 1793 C1 Stat. 335). This provision, with some amendments, which are not material to this action, has been in full force ever since, and is section 720 of the Revised Statutes. As a matter of fact, this act is merely declaratory of a rule of comity which has governed courts from time immemorial. In Peck v. Jenness, 7 How. 612, 624, 12 L. Ed. 841, the court say:
“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 on necessity; for, if one may enjoin, the other may retort by injunction, and thus the parties be without remedy, being liable to 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 the case of Kennedy v. Earl of Gassilis, Lord Eldon at one time granted an injunction to restrain a party from proceeding in a suit pending in the court of sessions of Scotland, which, on more mature reflection, he dissolved, because it was admitted, if the court of chancery could in that way restrain proceedings in an independent foreign tribunal, the court of sessions might equally enjoin the parties from proceeding in chancery, and thus they would be unable to proceed in either court. The fact; therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum.” 7 How. 624, 625, 12 L. Ed. 841.
Of course, it does not apply to suits commenced in the state courts after proceedings had been instituted in the national courts. Dietzsch v. Huidekoper, 103 U. S. 494, 26 L. Ed. 497; Fisk v. Railroad Co., 10 Blatchf. 518, Fed. Cas. No. 4,830. It is a rule of universal application, even in the absence of a statute, that, between courts of concurrent jurisdiction, the court which first acquires jurisdiction of the controversy or of the res should be permitted to retain it until the controversy is decided, and the res discharged from its control. [402]*402Mr. Justice Campbell, in speaking for the supreme court in Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028, said:
“It forms a recognized portion of the duty of this court to give preference to such principles and methods of procedure as shall serve to conciliate the distinct and independent tribunals of the states and of the Union, so that they may co-operate as harmonious members of a judicial system coextensive with the United States, and submitting to the paramount authority of the same constitution, laws, and federal obligations.” 20 How. 595, 15 L. Ed. 1028.
The authorities on this question are so numerous, and there is so little conflict among them, that it is unnecessary to make copious quotations from them, or cite many of them. A few, which are most in point, will suffice. Ableman v. Booth, 21 How. 506, 16 L. Ed. 169;. Buck v. Colbath, 3 Wall. 334, 18 L. Ed. 257; Haines v. Carpenter, 91 U. S. 254, 23 L. Ed. 345; Dial v. Reynolds, 96 U. S. 340, 24 L. Ed. 644; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390; Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. 403, 42 L. Ed. 807; U. S. v. Parkhurst-Davis Mercantile Co., 176 U. S. 317, 20 Sup. Ct. 423, 44 L. Ed. 485; Gates v. Bucki, 4 C. C. A. 116, 53 Fed. 961; Phelps v. Association, 50 C. C. A. 339, 112 Fed. 453; Whitney v. Wilder, 4 C. C. A. 510, 54 Fed. 554.
Probate courts in the state of Arkansas are constitutional courts of record, with exclusive jurisdiction over the estates of deceased persons. Article 7, § 34, Const. Ark. Upon the appointment of the administrator by the probate court, all the personal estate of the intestate immediately vests in the administrator as the agent of the court, and for the payment of debts the statute specially provides that “lands shall be assets in the hands of the executor or administrator and shall be deemed in their possession and subject to their control for the payment of debts.” Section 80, Sand. & H. Dig. Ark.
In Whitney v. Wilder, supra, it was sought by the legatee to enjoin an administrator, acting under the authority of the probate court of Louisiana, from distributing funds to the heirs at law, but the circuit court of appeals for the Fifth circuit, reversing the court below, held that:
“Tbe probibition of this statute [section 720, Rev. St.] extends to all cases over which the state court first obtains jurisdiction, and applies not only to injunctions aimed at the state court itself, but also to parties before the court, its officers or litigants therein.”
In Haines v. Carpenter, supra, Mr. Justice Bradley, speaking for the court, says:
“In the first place, the great object of the suit is to enjoin and stop litigation in the state courts, and to bring all litigated questions before the circuit court. This is one of the things which the federal courts are prohibited from doing. By the act of March 2, 1793, it was declared that the writ of injunction shall not be granted to stay proceedings in a state court. This provision is repeated in section 720, Rev. St., and extends to all cases except where otherwise provided by the bankrupt law.” 91 U. S. 257, 23 L. Ed. 345.
Counsel for the complainant insist that the rule established in Johnson v. Waters, 111 U. S. 640, 4 Sup. Ct. 619, 28 L. Ed. 547; Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. 237, 32 L. Ed. 630; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870; Robb v. [403]*403Vos, 155 U. S. 13, 15 Sup. Ct. 4, 39 L. Ed. 52, — permits this court to grant the relief prayed in the case at bar, but a careful examination of these cases and those following them will show that they were all bills to annul judgments or decrees of state courts on the ground of fraud, after they had been disposed of by those courts. In none of those cases did the court violate any rule of comity, nor was an injunction allowed in any of them except Marshall v. Holmes, and in that case the injunction was to restrain the defendant from enforcing the judgments fraudulently obtained. That injunction was only granted after the state court had rendered its final judgment, and the defendant, the judgment creditor in the state court, was the only one who could have executed them. The judgments having been held void by the federal court sitting in chancery, he was enjoined from issuing execution thereon; but in the case at bar it is the court which orders its agent, the administrator, to make the sale, and the entire matter is within the jurisdiction and under the control of the probate court of St. Francis county.
But it is urged that the bill charges that the judgments of the probate court, to pay which the administrator has been directed to sell the lands, were fraudulently obtained, and without jurisdiction, and that the other bills described in this bill were filed to set aside these judgments, and that this bill is merely ancillary to prevent a sale of the lands while the other actions are pending and undetermined. All the facts now set up in this bill existed and were known to complainant at the time the original bills were filed. It is conceded that, had this injunction been asked in the original bills, it could not have been granted; but it is ingenuously urged that, this court having obtained jurisdiction on the original bills to set aside the judgments of the probate court, it may now, in this proceeding, grant the injunction as ancillary to the other bills, for unless the administrator, it is urged, is restrained from selling the lands until the other suits to annul the fraudulent judgments are determined, there will be nothing left for the complainant, if it should finally be determined that the judgments of the probate court were void, and should be set aside. Courts cannot assume jurisdiction by such indirect methods. A litigant cannot split up his cause of action in this manner for the purpose of conferring jurisdiction which otherwise would not exist. Courts of equity determine all matters known at the time the suit was instituted in one controversy, and, if no jurisdiction exists when the bill is filed, it cannot be conferred by resorting to the filing of an ancillary bill and setting up facts existing and known to exist at the time the original suits were instituted. Perhaps, if the order of the probate court, directing the administrator to sell the real estate of the intestate for the payment of these debts, had been made after the filing of the original bills in this court, and after this court had obtained jurisdiction, the result might have been different; but as the bill in the case at bar does not show such a state of facts, it is unnecessary to determine that question.
As to the other question raised by the demurrer to the bill, — that the judgment creditors, for the payment of whose judgments the lands are ordered to be sold by the administrator, are indispensable par[404]*404ties, — that must also be sustained. The administrator is merely a naked trustee. He is the agent of the court in winding up the estate of the deceased. The judgment creditors for’whose benefit this land is to be sold are the real parties in interest, and therefore are indispensable parties. How can this court pass upon their rights without having them before it? Would that not be depriving them of property without due process of law, within the constitutional inhibition? It is settled that a court of equity can render no decree without having all necessary parties before it; and if, as was admitted in the argument, those creditors cannot be made parties without depriving the court of jurisdiction on account of their citizenship, the bill must be dismissed. Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825; Cole Silver Min. Co. v. Virginia & G. H. Water Co., 1 Sawy. 685, Fed. Cas. No. 2,990; Alexander v. Hornor, 1 McCrary, 634, Fed. Cas. No. 169.
The demurrer to the bill must be sustained, and the injunction refused.