· 4, rmnumn ynsconrsn.
It maybe that upon discontinuing the prior suit the plaintiffs in that
suit would have been entitled to proceed to judgment in it; or, with
the consentof the court, the suit of November 10, 1883, could have
been carried on in preference to the other. But the parties having
elected to try the case of May 11, 1883, had no right to demand a
trial in the second suit on the same issue. The act of 1875, under
which the suit of November 10, 1883, was removed into this court,
provides that the application for removal shall be made “before or at
the term at_ which said cause could be first tried, and before the trial
thereof ;’? and, that cause being affected with the proceedings in the
prior suit of May 11, 1883, in which a trial was had before the appli-
cation was made, it must be said that the petition to remove was not
Bled in due time.
By the answer of Hess, Pierce, and Steward, in the suit of Novem-
ber 10, 1883, which was Bled November 30, 1883, plaintiffs were ad-
vised that those parties had disposed of their interest in the Eureka
claim. It was then practicable to make the parties to the suit of
May 11, 1883, as they were subsequently made in the suit of Novem-
ber10, 1883, and to establish the right of removal in both suits if
any could exist. To proceed to trial in either cause after that date,
was a waiver of the right to remove the other under the act of 1875.
Any other rule would enable the parties to try their fortunes in the
district court of the state, and if the result should be unsatisfactory
, to renew the contest in this court.
The suggestion that a suit may be prosecuted in the state court and
in a federal court at the same time and for the same cause, would be
worthy of consideration if the suit of November 10, 1883, had been
brought in this court; but such is not the fact. And the question is,
not whether the pendency of another suit for the same cause in a court
of the state will abate an action in this court. We are now consider-
ing whether, in several actions for thesame cause between the same
parties in a court of the state, theparties may proceed to trial in one,
and afterwards remove another under the act of 1875, and have the
right to try the latter in the federal court. That question must be an-
swered in the negative. -
It was suggested, also, that upon an action at law to recover real
property in a court of the state a bill can be maintained in this court
to preserve the property pending the suit at law; but that rule is ap-
plicable only when the jurisdiction of the state court has not been in-
voked. If, in the principal suit at law, relief by way of injunction is
asked fo1·, there can be no ground upon which to ask for the same
_ thing in this court. Before the application to remove the suit of No-
vember 10, 1883, was made in the district court of the state, all mat-
ters in controversy between the parties had been tried, and once
c determined in that court, and the right of removal no longer existed.
The suit of November 10, 1883, was improperly removed to this court,
and the motion for injunction will be denied.