wmvnn v. mano. 23
To this bill the defendants interposed a plea. setting out thepro-
ceedings in the two suits in the sixth-district court of the parish of
Orleans more fully, and claiming that the pendency of those proceed-
ings operated as a bar to the further proceedings in this court under
the bill. This plea was set down for argument, and, on the hearing,
the plea was overruled, reserving to the defendants, on the coming in
of an answer showing that the property mortgaged was in the pos-
session of another court, the right to apply for a stay of proceed-
ings until the property should be released from the custody of the
law. Thereupon the defendants filed their answer, among other de-
fenses reiterating at length the pendency of the proceedings in the
state court between the same parties on the same cause of action, and
further setting out other proceedings between the same parties in the
supreme court of the state, not necessary to further refer to. Repli-i
cation was made to this answer in due time. r »
After the case was thus put at issue complainants, on leave,.filed a
supplemental bill setting forth, in short, that they have discontinued ~
the suit for seizure and sale instituted in the state court, No. 9,804,
aforesaid, and have caused the property to be released from seizure
by the sheriff in.that suit, and have caused the cancellation of all .
inscriptions of seizures, so that the mortgaged property is not now in
the actual or constructive possession of any other court, but is in the
undisturbed possession of one of the defendants. And now the
defendants come into the court and file a paper which is indorsed
"Dernurrer to supplemental bill, ” but which is a demurrer and argu-
ment to the jurisdiction of the court upon the face of the record.
Conceding that the defendants may raise this question at this l
stage of the case, and in this way, which is very doubtful, certainly s
the matter must be determined on the facts alleged by complainants,
which are to be taken as true, and not upon the matters pleaded in
defense, either in the original plea or in the answer. The allega-
tions of the original bill bearing on the matters urged to defeat the
jurisdiction of this court have been recited in full. Supra. They
were put in the bill as a basis for the appointment ofa receiver, and
not as at all supporting complainants’ main demand for relief. ‘
These allegationsshow (1) that complainant had obtained from the
state court executory process on the notes and mortgage hereinsued
on, and thereunder the sheriff of the parish of Orleans had adver-
tised the mortgaged property for sale; (2) thatpdefenpdants had in-
stituted a suit in the same court against complainantto enjoin said
sale under executory process and had obtained an injunction pen-