It would appear, therefore, from the record that the Banking Department of the State of Pennsylavain, with the record above referred to, had challenged fairly and squarely the jurisdiction of this court on the ground that jurisdiction conferred by the Constitution of the United States on nonresident plaintiffs does not apply. This contention is based on the argument that a statute of Pennsylvania, above referred to (act of 1933), can deny to such nonresident plaintiffs the right to the jurisdiction of this court.
The law on this subject as viewed by this court was fully expressed in a full and complete opinion recently in the case of Elson v. Mortgage Building & Loan Association (D.C.) 4 F.Supp. 779. The authorities and principle of law involved are there reviewed and set forth at length. The court deems it unnecessary at this time to again do this. It may help clarify the question if some reference is made to the alleged assumption of jurisdiction by the court of common pleas of Chester county. Section 604 of the act (71 PS § 733 -- 604) provides:
"Certificates of possession; filing.
"A. The secretary, upon taking possession of the business and property of an institution as receiver, shall forthwith, under the seal of the department, prepare in duplicate a certificate, to be known as the certificate of possession, setting forth that he has become receiver of the institution. It shall state the name of the deputy receiver whom the secretary, pursuant to the provisions of this act, appoints to take charge of the affairs of the institution, and shall set forth the duties which he delegates to such deputy receiver. If the secretary does not appoint a deputy receiver prior to the date of the filing of the certificate of possession, or if he appoints a new deputy receiver or an additional one, or if he adds to the duties of the deputy receiver, he shall prepare, in duplicate, and file a supplement to the certificate of possession.
"B. The secretary shall file the original certificate of possession and the original of any supplement thereto in his office in Harrisburg, and the duplicate certificate of possession and the duplicate of any supplement thereto in the office of the prothonotary. The certificate of possession filed in the prothonotary's office, and any supplement thereto, shall be listed in the judgment index in the name of the institution as defendant and of the secretary as plaintiff.
"C. In addition the secretary shall, as soon as possible, file a certified copy of the certificate of possession, and of any supplement thereto, in the office of the recorder of deeds in each county in the Commonwealth, or with the proper official in any other state or country, in which any real property shall be situated which belongs to the institution or title to which is in its name, or upon which there is a mortgage or other lien which belongs to the institution or title to which is in its name. Such copy shall be recorded in the current deed book, and shall be indexed in the grantors' index in the name of the institution and in the grantees' index in the name of the secretary, or it shall be filed, indexed, or registered by whatever other method is provided by the law of the particular county, state, or country in which such real property is located."
It would seem from the provisions of the above act that the filing of a certificate which the defendants construe to be an assumption of court jurisdiction in Chester county is really nothing of the kind. It merely amounts to the making of a proclamation by which all persons are put upon notice of the new state of affairs existing with regard to the closed institution.
The comity which exists between jurisdictions, and which would give control to the tribunal first assuming it, must be an actual, real taking of the case in hand. It was admitted during the argument of the instant case that no judge of a Chester county court had the power to refuse or reject anything done in this case by the Banking Department. This court, therefore, holds that there gas been no jurisdiction within the meaning of the term by the local court in question. This court having affirmed the jurisdiction of the federal court in the instant case, a word as to the motives which move it as a chancellor to act would seem to be in order. It must be remembered that the Banking Department took charge of the defunct institution on February 14, 1933. Notwithstanding the fact that millions of dollars are concerned, and a large number of certificate holders are involved, nothing has been done by the Banking Department to provide the means for an active, intelligent, responsible administration of its pools. Just why such a situation has continued to exist has not been explained. Nonresident petitioners in this case are dissatisfied with wuch inaction. In the exercise of their constitutional rights, they have appealed to the equity side of this court for relief. They are alarmed over the safety of their holdings. No excuse, no explanation, and no promises of a future policy have been given. No interested group of fellow participants in the pool have entered an appearance or objected as a matter of record. This court, therefore, feels that it not only has jurisdiction, but that, in view of the status of the case, its duty as a chancellor is that that jurisdiction be recognized and that the prayer for relief be granted.
The prayer of the petition to vacate the appointment of the receiver is dismissed.
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