Per Curiam.
In our opinion the interlocutory injunction appealed from should be dissolved as improvidently and erroneously granted.
It is apparent that if a permanent injunction ought not to be granted on the petition involved, no preliminary one should be ordered. Such a permanent injunction is, the majority of the court think, prohibited by principle, expediency and authority. We are agreed in the belief, however, that the Circuit Court had the jurisdiction and the legal power to enter the order complained of. This makes it useless to comment upon the arguments made or suggested on either side orally or in the printed briefs concerning this element in the case. Whatever the misapprehension may have been under which the appellant’s counsel may have labored concerning the appellant’s previous appearance in the cause, it remains the fact that when appellant’s general appearance was for the first time entered in it on August 6, 1906, the court was thereby given jurisdiction and power to determine upon the relative rights of the receiver and appellant under the petition then on file in the cause, and under the amended and supplemental one which thereafter took its place. It will not do to say that had the receiver in his original petition not made the mistaken statement that proofs of loss had been filed with him, the appellant would not have appeared. It was, after all, within the knowledge of the appellant whether or not he had filed his claim with the receiver, and his solicitor and counsel must be, in the eye of the law, credited with the same knowledge.
But that the court had jurisdiction and power to make the order of injunction does not imply its prop'riety or its freedom from error.
On principle it is objectionable, because it is the declared policy of the State of Illinois in similar cases to guarantee to its own citizens the right to pursue their remedies in the courts of Illinois to the exclusion of the claims of all foreign receivers or assignees. As we said in Smith v. Berz, 125 Ill. App. 122, p. 131, citing to the proposition Heyer v. Alexander, 108 Ill. 385, and comparing it with other cases on the same general subject in Illinois: “Neither a voluntary assignee nor one purely statutory from a foreign jurisdiction, nor a receiver appointed by a foreign court, can successfully hold property of which he has not obtained possession in the jurisdiction appointing him, against attaching creditors of the insolvent estate who are citizens of Illinois.”
Why, then, should Illinois seek to deny to citizens of California the same right in the courts of California that it insists on retaining for its own citizens in the courts of Illinois? So to do is to violate the spirit, at least, of our national constitution, and to make an unwarranted distinction between the citizens of different states placed in precisely the same situation. It is not to the purpose to say that the courts of Illinois will prevent its own citizens from pursuing in other states remedies which are open to the citizens of those states under this rule, for that exercise of power depends on an entirely different principle, which recognizes the propriety of the tribunals of each state preventing an evasion of the law of that state by its own citizens, who owe it obedience and allegiance.
The reason in expediency for forbidding such an injunction as the present one is at least equally strong.
The injunction cannot be enforced if granted. Already the California court has repudiated the idea that comity demands of it the recognition of the receiver’s claims as against Hawley’s rights to pursue his remedy in it.
Hawley is not in this jurisdiction personally; he has, so far as appears, no property here; he has not been here for many months at least, and he is unlikely to come so long as the injunction is in force against him and he is violating it. There is no power which could be successfully invoked to carry out the mandate of the court. Why should a court of Illinois issue a bruium fulmén—a bull against the comet? Such an order, peremptory in its tone, but foredoomed in the knowledge of the judge who issues it, the parties it purports to affect, and the counsel who procure or oppose it, to disobedience and disregard, certainly does not add to that respect for the law and for the power and dignity of the courts which it is desirable to maintain and increase.
The authority of the only decided cases cited to us, which are strictly in point, is on the same side of the question. It is conceded by counsel for the appellee that the case of Carrón Iron Company v. Stainton, 5 House 'of Lords Cases, 415, is distinguishable from the one at bar only in minor considerations, not in principle affecting the reasoning of Lord Chancellor Cranworth, who expressed the opinion of the majority of the Law Lords thus: “The Company” (i e. the Scotch Company in question) “has real property in London and Liverpool and in the county of Cumberland. The question is whether this connection with England makes it fit that the courts should interfere to prevent the appellants from exercising their right of proceeding in the tribunals of their own country. I confess that I can discover no foundation for such a proposition. The circumstance that the appellants have property in this country which may be attached or sequestered enables the court to make any injunction it may issue effectual, but I do not see on what principle it can make the issuing of an injunction just or expedient, if it would have been unjust.or inexpedient supposing there had been no property capable of being sequestered.” * * * “These decisions” (i e. certain decisions cited in argument) “can only show by way of analogy (if indeed they do afford such an analogy) that service on the agent of the -Carrón Company in London would be good service on the company itself, though out of the jurisdiction. But they have no bearing on the question whether the equity sought to be enforced is one which can properly be applied toward a .foreigner domiciled abroad. On these grounds I think that the court below ought not to have granted an injunction. ’ ’
When the case went back to the Master of the Bolls, Sir John Bomilly, it was decided that the applicability of the judgment of the House of Lords was not affected by an alleged submission of the appellants to the English Courts by proceedings begun in them in the meantime (Stainton v. Carron Iron Company, 21 Beavans Rep. 152), and this decision going to the Court of Appeals, Stainton v. Carron Iron Company, 26 L. J. Rep. N. S. Ch. 332, was there affirmed, the Lord Chancellor saying: “I conclude that it must be a very strong case which would justify this court in restraining a foreigner" domiciled in another country from proceeding to obtain the payment of debts according to the law of the country in which he is domiciled. ’ ’
But more controlling on us than this case in the highest tribunals of Great Britain and the similar decisions in Crofton v. Crofton, 15 Law Rep. Ch. Div. 591, is the decision of the Supreme Court of Illinois in Western Union Telegraph Company v. Pacific and Atlantic Telegraph Company, 49 Ill. 90.
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Per Curiam.
In our opinion the interlocutory injunction appealed from should be dissolved as improvidently and erroneously granted.
It is apparent that if a permanent injunction ought not to be granted on the petition involved, no preliminary one should be ordered. Such a permanent injunction is, the majority of the court think, prohibited by principle, expediency and authority. We are agreed in the belief, however, that the Circuit Court had the jurisdiction and the legal power to enter the order complained of. This makes it useless to comment upon the arguments made or suggested on either side orally or in the printed briefs concerning this element in the case. Whatever the misapprehension may have been under which the appellant’s counsel may have labored concerning the appellant’s previous appearance in the cause, it remains the fact that when appellant’s general appearance was for the first time entered in it on August 6, 1906, the court was thereby given jurisdiction and power to determine upon the relative rights of the receiver and appellant under the petition then on file in the cause, and under the amended and supplemental one which thereafter took its place. It will not do to say that had the receiver in his original petition not made the mistaken statement that proofs of loss had been filed with him, the appellant would not have appeared. It was, after all, within the knowledge of the appellant whether or not he had filed his claim with the receiver, and his solicitor and counsel must be, in the eye of the law, credited with the same knowledge.
But that the court had jurisdiction and power to make the order of injunction does not imply its prop'riety or its freedom from error.
On principle it is objectionable, because it is the declared policy of the State of Illinois in similar cases to guarantee to its own citizens the right to pursue their remedies in the courts of Illinois to the exclusion of the claims of all foreign receivers or assignees. As we said in Smith v. Berz, 125 Ill. App. 122, p. 131, citing to the proposition Heyer v. Alexander, 108 Ill. 385, and comparing it with other cases on the same general subject in Illinois: “Neither a voluntary assignee nor one purely statutory from a foreign jurisdiction, nor a receiver appointed by a foreign court, can successfully hold property of which he has not obtained possession in the jurisdiction appointing him, against attaching creditors of the insolvent estate who are citizens of Illinois.”
Why, then, should Illinois seek to deny to citizens of California the same right in the courts of California that it insists on retaining for its own citizens in the courts of Illinois? So to do is to violate the spirit, at least, of our national constitution, and to make an unwarranted distinction between the citizens of different states placed in precisely the same situation. It is not to the purpose to say that the courts of Illinois will prevent its own citizens from pursuing in other states remedies which are open to the citizens of those states under this rule, for that exercise of power depends on an entirely different principle, which recognizes the propriety of the tribunals of each state preventing an evasion of the law of that state by its own citizens, who owe it obedience and allegiance.
The reason in expediency for forbidding such an injunction as the present one is at least equally strong.
The injunction cannot be enforced if granted. Already the California court has repudiated the idea that comity demands of it the recognition of the receiver’s claims as against Hawley’s rights to pursue his remedy in it.
Hawley is not in this jurisdiction personally; he has, so far as appears, no property here; he has not been here for many months at least, and he is unlikely to come so long as the injunction is in force against him and he is violating it. There is no power which could be successfully invoked to carry out the mandate of the court. Why should a court of Illinois issue a bruium fulmén—a bull against the comet? Such an order, peremptory in its tone, but foredoomed in the knowledge of the judge who issues it, the parties it purports to affect, and the counsel who procure or oppose it, to disobedience and disregard, certainly does not add to that respect for the law and for the power and dignity of the courts which it is desirable to maintain and increase.
The authority of the only decided cases cited to us, which are strictly in point, is on the same side of the question. It is conceded by counsel for the appellee that the case of Carrón Iron Company v. Stainton, 5 House 'of Lords Cases, 415, is distinguishable from the one at bar only in minor considerations, not in principle affecting the reasoning of Lord Chancellor Cranworth, who expressed the opinion of the majority of the Law Lords thus: “The Company” (i e. the Scotch Company in question) “has real property in London and Liverpool and in the county of Cumberland. The question is whether this connection with England makes it fit that the courts should interfere to prevent the appellants from exercising their right of proceeding in the tribunals of their own country. I confess that I can discover no foundation for such a proposition. The circumstance that the appellants have property in this country which may be attached or sequestered enables the court to make any injunction it may issue effectual, but I do not see on what principle it can make the issuing of an injunction just or expedient, if it would have been unjust.or inexpedient supposing there had been no property capable of being sequestered.” * * * “These decisions” (i e. certain decisions cited in argument) “can only show by way of analogy (if indeed they do afford such an analogy) that service on the agent of the -Carrón Company in London would be good service on the company itself, though out of the jurisdiction. But they have no bearing on the question whether the equity sought to be enforced is one which can properly be applied toward a .foreigner domiciled abroad. On these grounds I think that the court below ought not to have granted an injunction. ’ ’
When the case went back to the Master of the Bolls, Sir John Bomilly, it was decided that the applicability of the judgment of the House of Lords was not affected by an alleged submission of the appellants to the English Courts by proceedings begun in them in the meantime (Stainton v. Carron Iron Company, 21 Beavans Rep. 152), and this decision going to the Court of Appeals, Stainton v. Carron Iron Company, 26 L. J. Rep. N. S. Ch. 332, was there affirmed, the Lord Chancellor saying: “I conclude that it must be a very strong case which would justify this court in restraining a foreigner" domiciled in another country from proceeding to obtain the payment of debts according to the law of the country in which he is domiciled. ’ ’
But more controlling on us than this case in the highest tribunals of Great Britain and the similar decisions in Crofton v. Crofton, 15 Law Rep. Ch. Div. 591, is the decision of the Supreme Court of Illinois in Western Union Telegraph Company v. Pacific and Atlantic Telegraph Company, 49 Ill. 90. In that case, although the Pacific and Atlantic Telegraph Company, a foreign corporation, had come into the courts of Illinois seeking relief in a matter to which the cross-bill of the Western Union Telegraph Company was plainly germane, the court refused the prayer of the cross-bill for an injunction against the Pacific and Atlantic Telegraph Company, forbidding it to attach its wires to the poles of the Western Union Telegraph Company in the State of Indiana, saying:
“The jurisdiction of our courts is only co-extensive with the courts of our state. They cannot legally send their process into other states and jurisdictions for service. If the exercise of such a jurisdiction were attempted and an injunction granted, and it should be disregarded by persons in Indiana, this court would be powerless to enforce the injunction by attachment, and hence the effort to exercise such- a power would be readily defeated. But we are of the opinion that neither law nor comity between distinct state or national organizations sanctions the authority of one such body to exercise jurisdiction over the citizens and their property while both are beyond the jurisdiction of the tribunal in which the proceeding is pending. The courts of this state cannot restrain citizens of another state, who are beyond the limits of this state, from performing acts in another state or elsewhere outside of and beyond the boundary lines of this state. Any other practice would necessarily lead to a conflict of jurisdiction.”
The opinion in Barry v. Mutual Life Ins. Co., 2 New York Supreme Court Rep. 15, shows the Supreme Court of the State of New York in accord with this doctrine. So too, we think, were the Superior Court of New York City in deciding the case of Hammond v. Baker, 3 Sandford, 704, and Mr. Justice Brown, afterward of the Supreme Court of the United States, when in the U. S. Circuit Court for the Eastern District of Michigan, he rendered the opinion in Kelley v. Ypsilanti Dress-Stay Manufacturing Company, 44 Federal Reporter, 19.
We have fully in mind the distinctions which counsel for appellee insist exist between- each of these cases and the one at bar, but they are forced to the’ statement that in the Illinois case the reasoning is, in their opinion, unsound, a proposition in which, as is shown by what we have already said, we do not concur, and which could hardly be allowed to govern our decision if we did. It is true that in the most technical sense in which they might be understood, the words which precede the excerpt we have quoted from the opinion —“This motion must be denied for want of jurisdiction,” are not consistent with our holding about the power of the court in the case at bar, but the words were evidently not used in that strict sense. They mean, as the further explanation shows, that the courts of Illinois could not without error exercise such a power.
Neither the distinction argued from the fact that the Western Union Telegraph case in Illinois dealt with tangible property in the State of Indiana, nor the one sought to be deduced from the fact that the New York cases involved a proposed injunction against the prosecution of an action against the principal defendant instead of an attachment of choses in action in such a suit, commends itself to us. The principle and reasoning of the cases cited seem to ns to apply to the case at bar as strongly as though these differences did not exist. Our judgment, therefore, is that the order of the Circuit Court be reversed.
Reversed.