Page:Federal Reporter, 1st Series, Volume 6.djvu/458

 446 FEDERAL REPORTBE. �banks, president, and 0. W. Barrett, secretary, of the board of trustees; Levi D. Boone and Samuel S. Boone, the one as trustee of the mortgage or deed of trust, and the other as the Buccessor of the trustee. As I have said, the bills were filed on the same day, the one in the circuit court- of Cook county, and the other in this court. It seems that the bill in the state court was filed before the bill in this court, although on the same day. No process of either court was served on the day the bill was filed. On the nineteenth of February, the day following, the process of this court was served on ail the defendants, before 11 o'clock a. m. of that day. The process issuing from the state court was not served until after 2 o'clock p. M. of the same day ; so that the process issuing from this court was first served ; and the question is whether this court obtained jurisdiction of the case for the purposes contemplated by the bill, viz. : for the foreclosure of the mort- gage. Although the bill was filed in the state court first, on the same day, the rule, I take it, is well settled that the right of a court to take jurisdiction of a party depends upon the service of process upon the party. If a party commence a Buit, and process is not served, it does not take effect as against the party defendant, howsoever long process may remain in the hands of the officer. The process of thia court being fijst served upon the defendants, the University of Chi- cago, and upon Boone, gave this court jurisdiction and the right to go on and foreclose this mortgage. It is said, and there is some evidence in an afiSdavit tending to establish the faet, that there was a race on the part of the plaintiff, in the case in this court, first to obtain service upon the defendants. It may be, but at the same time this court must look at the facts. It is often a question which bas been most diligent, and courts have to determine rights according to the diligence of a party. And if, in this case, the plaintif bas been more diligent than the plaintiff in the state court, how can this court deprive it of its equity, and the preference to which it may be entitled ? I do not know of any way that this can be done. Then this court retains this bill for the purpose named in it — ■ for the foreclosure of this deed of trust or mortgage — and the ��� �