Wilmer vs. The Atlanta & Richmond Air Line Railway Company. When the property is situated outside the territorial jurisdiction of the court, the court may require assignments to be made by the defendant to the receiver. Chipman v. Sabbaton, 7 Paige Ch., 47; Cagger v. Howard, 1 Barb. Ch., 369; Story on Conflict of Laws, § 463; Northern Indiana Railroad Co. v. Michigan Central Railroad Co., 15 How., 243. As the property of the defendant company is one entire and indivisible thing, and as it is all covered by one deed of trust, there seems to be no good reason why this court should not appoint a receiver for the whole, even though a part of the property may extend into another state. The court having jurisdiction of the defendant can compel it to do all in its power to put the receiver in possession of the entire property. If other persons outside the territorial jurisdiction of this court have seized the property of defendant, the receiver may be compelled to ask the assistance of the courts of that jurisdiction to aid him in obtaining possession, but that is no reason why we should hesitate to appoint a receiver for the whole property. We think the courts of other jurisdictions would feel constrained, as a matter of comity, to afford all necessary aid in their power to put the receiver of this court in possession. Finally, it is objected that the superior court of Fulton county, Georgia, and the United States circuit courts of South Carolina and North Carolina, respectively, have taken jurisdiction of the property of the company within their respective states, and their receivers are in possession, and this court ought not to interfere by the appointment of a receiver of its own. The record shows that the bill in this case asking this court to undertake the administration of this trust property, and to take possession of it by its receiver, was filed on the 30th of October, 1874. It is shown that service was made upon the defendant corporation on the 31st of the same month, and notice of the motion now on hearing was served on the same day. It further appears that on the 5th of November, upon the application of the complainants, and upon the showing that there appeared to be danger of irreparable injury from delay, a judge of this court directed that, upon the execution of a bond by complainants with sufficient sureties in the sum of five thousand Wilmer vs. The Atlanta & Richmond Air Line Railway Company. dollars, conditioned according to law, a restraining order issue enjoining and restraining the Atlanta & Richmond Air Line Railway Company, its officers and agents, from handing over or delivering possession of said railway or its appurtenances, or any of its other property, to any person except a receiver appointed by this court in this suit. The bond was given by the complainants as required by the court, and the restraining order was issued, and on the 9th of November served on the Atlanta & Richmond Air Line Railway Company. The case in Fulton superior court was not filed until November 10th, and no prayer was made for a receiver until Garner, a defendant in that case, applied for one in his answer, which was filed on November 20th. The suits in the United States circuit courts of South and North Carolina were not commenced until the 16th of November. Upon this state of facts, which court first acquired jurisdiction of this trust property? Is actual seizure of the property necessary to the jurisdiction of the court? In my judgment it is not. In this case I think the jurisdiction of the United States circuit court for the northern district of Georgia first attached to the property, because the suit in that court was first commenced and service of subpoena made, and because, 1. One of the main objects of the suit was to obtain possession of the property, and such possession was necessary to the full relief prayed by the bill, and 2. Because, by the service of the restraining order enjoining the defendant company from delivering possession of the trust property to any person except a receiver appointed by this court in this cause, the court acquired constructive possession, and from the moment of the service of the restraining order the property was in gremio legis. I think these positions are sustained by the authorities. I subjoin a reference to a number of cases, in all of which the subject under consideration is discussed, and in some of which the precise point is decided and the views above expressed are sustained: Smith v. McIver, 9 Wheat., 532; Wallace v. McCon Wilmer vs. The Atlanta & Richmond Air Line Railway Company. nell, 13 Pet., 151; Peck v. Jenness, 7 How., 624; Williams' Adm'x v. Benedict, 8 How., 107; Wiswell v. Sampson, 14 id., 52; Taylor v. Carryl, 20 id., 583; Green, Adm'r, v. Creighton, 23 id., 90; Freeman v. Howe, 24 id., 457; Chittenden v. Brewster, 2 Wall., 191; Memphis v. Dean, 8 id., 64; Taylor v. Taintor, 16 id., 370; New Orleans v. Steamship Co., 20 id., 392, 393; Atlas Bank v. Nahant Bank, 23 Pick., 489; Wadleigh v. Veazie, 3 Sumn., 165; Ex parte Robinson, 6 McL., 355; Bell v. Ohio Life & Trust Co., 1 Biss., 260; Bell v. The New Albany Railroad Co., 2 id., 390; Parsons v. Lyman, 5 Blatch., 170; Stearns v. Stearns, 16 Mass., 171; Conover v. The Mayor, 25 Barb., 513; Clepper v. The State, 4 Tex., 242; Thompson v. Hill, 3 Yerg., 167; Bank v. Rutland Railroad Co., 28 Vt., 478; Merrill v. Lake, 16 Ohio, 405; Ex parte Bushnell, 8 Ohio St., 601; State v. Yarbrough, 1 Hawks, 78; Gould v. Hays, 19 Ala., 448; High on Rec., 38, 39, 40, 41, and note. Especial attention is called to the cases of Wiswell v. Sampson, 14 How.; Chittenden v. Brewster, 2 Wall., and Bell v. The New Albany Railroad Co., 2 Biss., supra. An examination of the cases cited will show that actual seizure of property has not been considered necessary to the jurisdiction of the court in a case where the possession of the property is necessary to the relief sought. The commencement of the action and service of process, or according to some of the cases the simple commencement of the suit by the filing of the bill is sufficient to give the court jurisdiction, to the exclusion of all other courts. In this case, not only was the suit begun and process served before the commencement of any other suit, but the defendant railway company was actually enjoined by the order of this court from yielding possession of the trust property to any one except a receiver appointed by this court in this case. In my judgment, this restraining order gave this court constructive possession of the trust property, and a subsequent seizure of the same by any person on the order of any court whatever, in a suit subsequently begun, was a contempt of the process and jurisdiction of this court. If this court, upon the bill filed in this case, has the power to Wilmer vs. The Atlanta & Richmond Air Line Railway Company. take possession of the entire property granted by the trust deed, as we have already decided it has, then the filing of the bill asking this court to take possession of and administer the trust property, and the service of process, excluded the jurisdiction of all other courts to take possession of and administer the same property or any part thereof. Other questions than those noticed in this opinion have been argued at the bar, but it is not necessary to decide them in passing on this motion. I am of opinion that this court has jurisdiction to appoint a receiver for the entire property covered by the trust deed, and to administer the property for the benefit of all persons interested in the trust; that the jurisdiction of this court over the entire trust property attached before that of any other court; that all parties necessary to the hearing of this motion are before the court; that the bill and the evidence submitted establish a proper case for the appointment of a receiver, and the facts brought to the knowledge of the court imperatively demand its intervention; the interest of all parties requires that our jurisdiction, being thus exclusive over the subject matter, should be exercised, and that the motion for the appointment of a receiver for the whole trust property should be sustained. In pursuance of the foregoing opinion, the court on the 19th of December, 1874, appointed John H. Fisher, Esq., receiver for the entire property covered by the deed of trust executed by the Atlanta & Richmond Air Line Railway Company. Fisher gave bond, as required by the order of the court, but was unable to get possession of that part of the trust property lying in Georgia. On the 24th of May, 1875, he applied to the United States circuit court, from which he received his appointment, then being held by Mr. Circuit Justice BRADLEY and Mr. District Judge ERSKINE, for a writ of assisiance to enable him to get possession of so much of the trust property as lay within the northern district of Georgia. Upon this application the following opinion was delivered: Messrs. A. T. Akerman and L. E. Bleckley, for the motion. Messrs. P. L. Mynatt and N. J. Hammond, contra. Wilmer vs. The Atlanta & Richmond Air Line Railway Company. BRADLEY, Circuit Justice. This is a bill filed on behalf of first mortgage bondholders of the Atlanta & Richmond Air Line Railway Company, praying for a sale of the railway and appurtenances, and for a receiver to take possession of the property pending the suit. A receiver, Mr. John H. Fisher, was appointed by Circuit Judge Woods, on the 9th of December last. On proceeding to take possession of the property, the receiver found a large and important portion of it, to wit: the depot and terminus in Atlanta, and the railway line in Fulton, and some. other counties in Georgia, in the possession of one Lemuel P. Grant, as a receiver appointed by the superior court of Fulton county, a court of the state of Georgia having equity jurisdiction. Grant refused to surrender possession, and Fisher, under an advisory order of ERSKINE, District Judge, applied to the superior court of Fulton county for an order directing its receiver to surrender the property. This application was also refused. Fisher, the receiver appointed by this court, now applies by petition for a writ of assistance to put him in public possession of the property, and for an attachment as for a contempt against Grant, and other officials and directors of the railway company, for conspiring to keep the property out of the possession of the officers of this court. To this petition several answers have been filed by the parties implicated, and the question is thus presented whether this court can, and if it can, whether it will take the property in question out of the possession of a receiver appointed by a state court. Under ordinary circumstances, such a proposition would not be listened to for a moment. But the complainants and the receiver of this court rely on the special circumstances of the case as taking it out of the ordinary rule. Those circumstances may be briefly stated as follows: The bill in this case was filed October 30, 1874, and a copy and notice of motion for injunction and receiver were served on the railroad company the next day. On the 5th of November, Judge ERSKINE granted a restraining order, which, on the 9th of the same month, was served on the company, and on Grant, then a director of the company, appointed on behalf of the city council of Atlanta, of which he was a member. On the 11th it was served on Buford, the president, and on Sage, the general |