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City, 252 Mo. 466, 161 S. W. 261; State ex rel. St. Paul v. Great Northern R. Co. 134 Minn. 249, 158 N. W. 972; Otis Elevator Co. v. Chicago, 263 Ill. 419, 52 L.R.A. (N.S.) 192, 105 N. E. 338; Shea v. Muncie, 148 Ind. 14, 46 N. E. 138; State ex rel. Minneapolis v. St. Paul, M. & M. R. Co. 98 Minn. 380, 28 L.R.A. (N.S.) 298, 120 Am. St. Rep. 581, 108 N. W. 261, 8 Ann. Cas. 1047; Howell v. Hamburg Co. 165 Cal. 172, 131 Pac. 130.

Plaintiffs in error are not entitled to any relief in equity, because they do not come into court with clean hands.

which by the state courts we commonly ac-
cept as conclusive. It is admitted that the
building was constructed within defined
fire limits, and the supreme court of the
state has said this was contrary to valid
regulations then in force. The chal-
lenged ordinance must therefore be
treated as affecting an unlawful struc-
ture, and, as so applied, we can find no
plausible ground for holding it in con-
flict with the Federal Constitution.
The judgment below is affirmed.

1 Joyce, Inj. p. 30, § 14; 14 R. C. L. IN RE CHICAGO, ROCK ISLAND, &

PACIFIC RAILWAY COMPANY, Petitioner.

(See S. C. Reporter's ed. 273-280.) Prohibition

when granted

other

remedy. 1. A writ of prohibition to prevent a lower court from wrongfully assuming jurisdiction of a party, of a cause, or of some collateral matter arising therein, will outset objected to the jurisdiction, has ordinarily be granted to one who at the preserved his rights by appropriate procedure, and has no other remedy, but if the jurisdiction of the lower court is doubt

§ 56, p. 353; 1 Pom. Eq. Jur. p. 3d ed. § 397, p. 657; 1 Spelling, Inj. & Extr. Rem. 2d ed. § 28, p. 40; 10 Enc. Pl. & Pr. 932; Pittsburgh, C. C. St. L. R. Co. v. Crothersville, 159 Ind. 330, 64 N. E. 914; Rudolph v. Golden & Co. 39 App. D. C. 230; Danciger v. Stone, 187 Fed. 853; Chicago Bd. of Trade v. O'Dell Commission Co. 115 Fed. 574; Fairfield Floral Co. v. Bradbury, 89 Fed. 393; Sweeney v. Wilkes-Barre, 62 Pa. Super. Ct. 54; Varney & Green v. Williams, 155 Cal. 318, 21 L.R.A. (N.S.) 741, 132 Am. St. Rẹp. 88, 100 Pac. 867; Joseph v. Macow-ful, or depends upon a finding of fact made sky, 96 Cal. 518, 19 L.R.A. 53, 31 Pac. 914; Millbrae Co. v. Taylor, 4 Cal. Unrep. 714, 25 L.R.A. 193, 37 Pac. 236; Castroville Co-op. Creamery Co. v. Col, 6 Cal. App. 533, 92 Pac. 648; Pacific Debenture Co. v. Caldwell, 147 Cal. 106, 81 Pac. 314.

Mr. Justice McReynolds delivered the opinion of the court:

Defendants in error,

officers and

upon evidence which is not in the record, or if the complaining party has an adequate remedy by appeal or otherwise, the writ [For other cases, see Prohibition, II. in Digest will ordinarily be denied.

Sup. Ct. 1908.]
Prohibition

mandamus

1

when

proper remedy doubtful jurisdicother remedy.

tion below

2. Neither prohibition nor mandamus will be granted by the Federal Supreme Court to prevent a district court from asagents of the city of San Francisco, pur-resident corporation against which a persuming jurisdiction of the person of a nonporting to act under an ordinance ap-sonal liability is asserted in a cross bill proved May 8, 1917, gave notice of their intention to demolish and remove a wooden building on Van Ness avenue, the property of plaintiffs in Thereupon the latter instituted this proceeding for an injunction upon the ground, among others, that, as the building was lawfully erected, the ordinance violated the Federal Constitution.

error.

The court below, following Bancroft v. Goldberg, B. & Co. 166 Cal. 416, 137 Pac. 18, held that the building was erected in 1906, within the fire limits theretofore prescribed, in violation of valid local regulations duly enacted under the charter, and consequently there could be no reasonable doubt of the municipality's power to direct its removal.

[273] The meaning and effect of the charter and ordinances thereunder are questions of local law, determination of

Note. On superintending control and supervisory jurisdiction of the superior over the inferior or subordinate tribunal -see note to State ex rel. Fourth Nat. Bank v. Johnson, 51 L.R.A. 33.

As to when mandamus is the proper remedy, generally-see notes to United States ex rel. International Contracting Co. v. Lamont, 39 L. ed. U. S. 160; McCluny v. Silliman, 4 L. ed. U. S. 263; Fleming v. Guthrie, 3 L.R.A. 54; Burnsville Turnp. Co. v. State, 3 L.R.A. 265; State ex rel. Charleston, C. & C. R. Co. v. Whitesides, 3 L.R.A. 777, and Ex parte Hurn, 13 L.R.A. 120.

On mandamus to control judicial action-see notes to Ex parte Morgan, 29 L. ed. U. S. 135, and State ex rel. Bayha v. Kansas City Ct. of Appeals, 3 L.R.A. 476.

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CTOR MAIrwell, William L.
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seoart to issue a damus will not e question of jue is an otherwise appeal or writ of

SEL 29 T. S. 436, 52 C. Rep. 581; Ex T. S. 363, 55 L. ed. 322 31 Sup. Ct. 220 U. S. 201, 482 435, 31 Sap. Ct. Rep. 252 T. S. 32, 37, 64 Szp. Ct. Rep. 239.

ve to issue the extraordipenkitction or mandamus is Then it is clear that the court is sought to prohibit had the cause.

er Mtz. Ca. 184 U. S. 297, el. 54, 550, 2 Sup. Ct. Rep.

Mr. George D. Welles also argued the 4. Ordinarily a general appearance opsied a brief for respondent: cause, and, with Mr. Thomas H. Tracy, erates as a waiver of the immunity which the Judicial Code, § 51, gives a nonresident corporation from suit in a Federal court in a diatrist in which it is not a resident. (For other cases, see Courts, 938-941a: Ap pearance, 11. in Digest Sup. Ct. 1908.]

[No. 24, Original]

Writs of prohibition do not issue to the district court except in cases of admiralty and maritime law.

Ex parte Graham, 10 Wall. 541-543, 19 L. ed. 981. 982: Ex parte Easton, 95 T. S. 68-72, 24 L. ed. 373, 374; Re Massachusetts, 197 U. S. 482-488, 49 L. ed. 845-848, 25 Sup. Ct. Rep. 512; Ex parte

Argued December 13, 1920, Decided February City Bank, 3 How. 292-322, 11 L. ed.

28, 1921.

N PETITION for a Writ of Prohibi

ON
tion and/or Writ of Mandamus to
prevent the District Court of the United
Htates for the Northern District of Ohio,
Western Division, from assuming juris-
dietion of the person of a nonresident
corporation against which a personal
liability is asserted by a cross bill. Rule
discharged and petition dismissed.

The Facts are stated in the opinion.
Messrs Lawrence Maxwell and Wil-
Ham 1. Day argued the cause and filed
A brief for petitioner:

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1

facts in a case of a class in which it has power to pass upon the facts.

Smith v. Whitney, 116 U. S. 167-176, 29 L. ed. 601-604, 6 Sup. Ct. Rep. 570; Ex parte Detroit River Ferry Co. 104 U. S. 519, 520, 26 L. ed. 815, 816; Re Fassett, 142 U. S. 479-486, 36 L. ed. 1086-1089, 12 Sup. Ct. Rep. 295; Ex parte City Bank, 3 How. 292-308, 11 L. ed. 603-611; Ex parte Pennsylvania, 109 U. S. 174, 27 L. ed. 894, 3 Sup. Ct. Rep. 84; Re Atlantic City R. Co. 164 U. S. 633, 41 L. ed. 580, 17 Sup. Ct. Rep. 208; Re Huguley Mfg. Co. 184 U. S. 297-301, 46 L. ed. 549-551, 22 Sup. Ct. Rep. 455; Re Key, 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct. Rep. 624; Re Morrison, 147 U. S. 14-26, 37 L. ed. 60-64, 13 Sup. Ct. Rep. 246; Ex parte American Steel Barrel Co. 230 U. S. 35-46, 57 L. ed. 13791384, 33 Sup. Ct. Rep. 1007.

Mr. Justice Brandeis delivered the opinion of the court:

jurisdiction of the court; and, if it had not, whether the case is one which entitles the petitioner to either of the extraordinary remedies applied for.

There is a well-settled rule by which this court is guided upon applications for a writ of prohibition to prevent a lower court from wrongfully assuming jurisdiction of a party, of a cause, or of some collateral matter arising therein. If the lower court is clearly without jurisdiction, the writ will ordinarily be granted to one who, at the outset, objected to the jurisdiction, has preserved his rights by appropriate procedure, and has no other remedy. Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct. Rep. 149. If, however, the jurisdiction of the lower court is doubtful (Re Muir, decided by this court January 17, 1921 [254 U. S. 522, ante, 383, 41 Sup. Ct. Rep. 185]), or if the jurisdiction depends upon a finding of fact made upon evidence which is not in the record (Re The Chicago, Rock Island, & Pacific Cooper, 143 U. S. 472, 506, 509, 36 L. ed. Railway Company, commonly called the 232, 243, 244, 12 Sup. Ct. Rep. 453), or Rock Island, filed in this court a petition if the complaining party has an adin which it alleged that the district equate remedy by appeal or otherwise court of the United States for the north- (Re Tiffany, 252 U. S. 32, 37, 64 L. ed. ern district of Ohio, western division, 443, 445, 40 Sup. Ct. Rep. 239; [276] was undertaking to proceed against it Ex parte Harding, 219 U. S. 363, 55 L. personally in a suit therein pending; ed. 252, 37 L.R.A. (N.S.) 392, 31 Sup. Ct. that the Rock Island had not voluntarily Rep. 324), the writ will ordinarily be debecome a party to the suit, had not been nied. Tested by this rule, the case preserved with process, and could not, un-sented by the petition and the return does der § 51 of the Judicial [275] Code, be not entitle the Rock Island to this extraormade a party without its consent, since it dinary remedy. was organized under the laws of Illinois and Iowa, and was not a citizen or resident of Ohio; and it prayed for a writ of prohibition, or, in the alternative, a writ of mandamus, to prevent the court from proceeding further against it. The suit in which it is sought to proceed person-cago & Alton Railroad Company, held ally against the Rock Island is one by the Central Trust Company of New brought by an Indiana stockholder of the York, as trustee for the bondholders. Toledo, St. Louis, & Western Railroad These bonds were divided into two Company, an Ohio corporation, for the classes having somewhat different rights appointment of a receiver for that cor- and interests. A single bondholders' poration. The particular proceeding by committee was formed to protect both which the personal liability is asserted classes of bonds. Of the "A" bonds, is a cross bill which was filed by the $6,480,000 were outstanding; and of Toledo Company against the Rock Island these, $5,248,000 were deposited with the after the appointment of the receiver, committee,-$100,000 of them by the and after the Rock Island had appeared Rock Island. Of the "B" bonds, $5,047,before a special master for the purpose 000 were outstanding, all of which were of protecting its interests in an issue deposited with the committee by the of the Toledo Company's bonds. A rule Rock Island. The special master was was granted, and the case is now before directed to ascertain and report the us on the petition and return. The main amount, character, lien, and priority of questions argued here were whether, all claims; and creditors were notified upon the facts there stated, the Rock to present before him their respective Island had become a party to the suit claims, duly verified, or to file bills of and subjected itself generally to the l intervention. The bondholders' com

The original bill filed against the Toledo Company in the northern district of Ohio, western division, alleged, among other things, that it had defaulted on an issue of $11,527,000 Collateral Trust gold bonds, secured by stock of the Chi

filed in a suit for the appointment of a receiver of another corporation in default on its bonds, after the nonresident corporation appeared before a special master for the purpose of protecting its interest in such bonds, where the most that can be said against the district court's jurisdiction is that it is in doubt, the return reciting that the order which declared that such nonresident corporation became a party rests upon evidence which has not been embodied in the record, and the district court obviously having jurisdiction to determine in the first instance whether such

corporation had entered a general appear ance, and to determine whether the relief sought in the cross bill was in its nature germane to the proceedings theretofore instituted in the suit, so that the rights asserted in the cross bill could be properly litigated in that suit, and to determine whether the fact that such earlier proceeding had been instituted on behalf of such corporation, and that it had actively participated in the conduct thereof, and to that end had entered a general appearance, made it subject to further proceedings thereon by way of cross bill as fully as if the earlier action had been taken in its

name as well as on its behalf.

[For other cases, see Prohibition, II.: Mandamus, II. b; II. c, 1, in Digest Sup. Ct. 1908.]

Federal courts - proper district for

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ON PETITION for a Writ of Prohibition and/or Writ of Mandamus to prevent the District Court of the United States for the Northern District of Ohio, Western Division, from assuming jurisdiction of the person of a nonresident corporation against which a personal liability is asserted by a cross bill. Rule discharged and petition dismissed.

The facts are stated in the opinion. Messrs. Lawrence Maxwell and William L. Day argued the cause and filed a brief for petitioner:

An appeal or writ of error, at the end of long and expensive proceedings, which must go for naught if the district court is without jurisdiction, is not an adequate remedy.

Re Winn, 213 U. S. 467, 53 L. ed. 877, 29 Sup. Ct. Rep. 515.

Messrs. Lawrence Maxwell, William L. Day, and Joseph S. Graydon also filed a brief for petitioner.

Mr. Thurlow M. Gordon argued the cause, and, with Mr. Joseph P. Cotton, filed a brief for respondent:

The discretion of this court to issue a writ of prohibition or mandamus will not be exerted to review the question of jurisdiction where there is an otherwise adequate remedy by appeal or writ of

error.

Ex parte Nebraska, 209 U. S. 436, 52 L. ed. 876, 28 Sup. Ct. Rep. 581; Ex parte Harding, 219 U. S. 363, 55 L. ed. 252, 37 L.R.A. (N.S.) 392, 31 Sup. Ct. Rep. 324; Re Oklahoma, 220 U. S. 201, 209, 55 L. ed. 432, 435, 31 Sup. Ct. Rep. 426; Re Tiffany, 252 U. S. 32, 37, 64 L. ed. 443, 445, 40 Sup. Ct. Rep. 239.

And the power to issue the extraordinary writ of prohibition or mandamus is only exerted when it is clear that the court whose action it is sought to prohibit had no jurisdiction of the cause.

Re Huguley Mfg. Co. 184 U. S. 297, 301, 46 L. ed. 549, 550, 22 Sup. Ct. Rep. 455.

Mr. George D. Welles also argued the cause, and, with Mr. Thomas H. Tracy, filed a brief for respondent:

Writs of prohibition do not issue to the district court except in cases of admiralty and maritime law.

Ex parte Graham, 10 Wall. 541-543, 19 L. ed. 981, 982; Ex parte Easton, 95 U. S. 68-72, 24 L. ed. 373, 374; Re Massachusetts, 197 U. S. 482-488, 49 L. ed. City Bank, 3 How. 292-322, 11 L. ed. 845-848, 25 Sup. Ct. Rep. 512; Ex parte

603-617.

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Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150.

Neither remedy will issue in any case to control the judicial discretion of the district court, to compel it to decide a question within its jurisdiction in any particular way, to serve the purpose of an appeal or writ of error for the correction of errors or irregularities in its proceedings, or to review its judgment on the

facts in a case of a class in which it has power to pass upon the facts.

Smith v. Whitney, 116 U. S. 167-176, 29 L. ed. 601-604, 6 Sup. Ct. Rep. 570; Ex parte Detroit River Ferry Co. 104 U. S. 519, 520, 26 L. ed. 815, 816; Re Fassett, 142 U. S. 479-486, 36 L. ed. 1086-1089, 12 Sup. Ct. Rep. 295; Ex parte City Bank, 3 How. 292-308, 11 L. ed. 603-611; Ex parte Pennsylvania, 109 U. S. 174, 27 L. ed. 894, 3 Sup. Ct. Rep. 84; Re Atlantic City R. Co. 164 U. S. 633, 41 L. ed. 580, 17 Sup. Ct. Rep. 208; Re Huguley Mfg. Co. 184 U. S. 297-301, 46 L. ed. 549-551, 22 Sup. Ct. Rep. 455; Re Key, 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct. Rep. 624; Re Morrison, 147 U. S. 14-26, 37 L. ed. 60-64, 13 Sup. Ct. Rep. 246; Ex parte American Steel Barrel Co. 230 U. S. 35-46, 57 L. ed. 13791384, 33 Sup. Ct. Rep. 1007.

Mr. Justice Brandeis delivered the opinion of the court:

jurisdiction of the court; and, if it had not, whether the case is one which entitles the petitioner to either of the extraordinary remedies applied for.

There is a well-settled rule by which this court is guided upon applications for a writ of prohibition to prevent a lower court from wrongfully assuming jurisdiction of a party, of a cause, or of some collateral matter arising therein. If the lower court is clearly without jurisdiction, the writ will ordinarily be granted to one who, at the outset, objected to the jurisdiction, has preserved his rights by appropriate procedure, and has no other remedy. Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct. Rep. 149. If, however, the jurisdiction of the lower court is doubtful (Re Muir, decided by this court January 17, 1921 [254 U. S. 522, ante, 383, 41 Sup. Ct. Rep. 185]), or if the jurisdiction depends upon a finding of fact made upon evidence which is not in the record (Re Cooper, 143 U. S. 472, 506, 509, 36 L. ed. 232, 243, 244, 12 Sup. Ct. Rep. 453), or if the complaining party has an adequate remedy by appeal or otherwise (Re Tiffany, 252 U. S. 32, 37, 64 L. ed. 443, 445, 40 Sup. Ct. Rep. 239; [276] Ex parte Harding, 219 U. S. 363, 55 L. ed. 252, 37 L.R.A.(N.S.) 332, 31 Sup. Ct. Rep. 324), the writ will ordinarily be denied. Tested by this rule, the case presented by the petition and the return does not entitle the Rock Island to this extraordinary remedy.

The original bill filed against the Toledo Company in the northern district of Ohio, western division, alleged, among other things, that it had defaulted on an issue of $11,527,000 Collateral Trust gold bonds, secured by stock of the Chi

The Chicago, Rock Island, & Pacific Railway Company, commonly called the Rock Island, filed in this court a petition in which it alleged that the district court of the United States for the northern district of Ohio, western division, was undertaking to proceed against it personally in a suit therein pending; that the Rock Island had not voluntarily become a party to the suit, had not been served with process, and could not, under § 51 of the Judicial [275] Code, be made a party without its consent, since it was organized under the laws of Illinois and Iowa, and was not a citizen or resident of Ohio; and it prayed for a writ of prohibition, or, in the alternative, a writ of mandamus, to prevent the court from proceeding further against it. The suit in which it is sought to proceed person-cago & Alton Railroad Company, held ally against the Rock Island is one by the Central Trust Company of New brought by an Indiana stockholder of the York, as trustee for the bondholders. Toledo, St. Louis, & Western Railroad These bonds were divided into two Company, an Ohio corporation, for the classes having somewhat different rights appointment of a receiver for that cor- and interests. A single bondholders' poration. The particular proceeding by committee was formed to protect both which the personal liability is asserted classes of bonds. Of the "A" bonds, is a cross bill which was filed by the $6,480,000 were outstanding; and of Toledo Company against the Rock Island these, $5,248,000 were deposited with the after the appointment of the receiver, committee,-$400,000 of them by the and after the Rock Island had appeared Rock Island. Of the "B" bonds, $5,047,before a special master for the purpose 000 were outstanding, all of which were of protecting its interests in an issue deposited with the committee by the of the Toledo Company's bonds. A rule Rock Island. The special master was was granted, and the case is now before directed to ascertain and report the us on the petition and return. The main amount, character, lien, and priority of questions argued here were whether, all claims; and creditors were notified upon the facts there stated, the Rock to present before him their respective Island had become a party to the suit claims, duly verified, or to file bills of and subjected itself generally to the l intervention. The bondholders' com

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