24 FEDERAL REPORTER.
dente lite suspending proceedings; (3) that the defendants were in
the possession and enjoyment of the property.
These facts, it is urged, show that this court is without jurisdic-
tion, and the whole contention here depends upon them, for if we
bring in the matters pleaded in the supplemental bill, the suit in the
state court for executory process is no longer pending to defeat our
jurisdiction,tif it ever had that effect. The two suits instituted in
the state court, as set forth in the bill,-one for executory pro·
cess and one to enjoin,—amount to no more than one suit to fore-
close a mortgage. Where proceedings on a mortgage, via executive,
A in the state courts of Louisiana are enjoined, whether under article
739 of the Godeor not, whether with bond or without, a suit is made
for the foreclosure of a mortgage, substantially the same as is made
by bill, answer, and replication in _a court of chancery in a like case.
A So that the question made here, divested of technicality, is whether
the pendency of a suit in the courts of a state, for the foreclosure of
a mortgage, will bar a suit in this court between the same parties
for the foreclosure of the same mortgage. Unless there is something
in the character of the suit to take it out of the general rule it is no
bar. See Hyde v. Stone, 20 How. 173; Stanton v. Embirey, 93 U. S.
548; Ins. O0. v. Brune, 96 U. S. 588; Slavughter-house Case, 12 Fun.
Bar. 226.
There are only two features in the suits in this case pointed out as
taking the case out of the general rule: First, that the property is in
cuswdia legis; second, that the not of the judge granting executory
process amounts to a judgment between the parties.
_ `What effect possession by another court of the property on which
the mortgage rested would have, it is not necessary to consider, for
two reasons: (a) The court has already passed upon it, deciding that
so long as the property is in the custody of another court no decree
of sale will be passed. (b) The bill expressly avers the possession to
be in the defendant. '
As to the fiat of the judge or court, ordering, in default of payment
within certain delay, that an order of seizure and sale issue, consti-
tuting a judgment between the parties, or having in any sense the
force of res adjudicata, no better authority can be adduced than the
decisions of the supreme court of Louisiana. That court has held
in numerous cases: 4
“The decree is so far a judgment that an appeal will lie from it: but it is
not a judgment in the true and legal sense of the term, and possesses none of
its features. It issues without citation; decides no issue; adjudicates to the