CEriTRAL TRUST' CO. 17. CENTRAL
IOWA
BY. CO.
889
and therefore complainant's title to the stock of the Phrenix Farm & Ranch Company is not good. The motion for injuZlction will be denied.
TRusT Co. 1.
17.
CENTRAL IOWA Ry. Co. et ale
(Oircuit Oourt, S. D.I{)'/1Ia, O. D. May 29,1889.) JUDGMENT-LIEN-COST!!.
t
Under Code Iowa, § 1309. declaring that a judgment against a railway cor- . poration for damages for personal injuries shall be a lien on the corporate property superior to the lien of mortgages. etc.· the costs necessarily result· ing from the action to procure the judgment and enforce the lien are entitled to like priorit.y.
2.
CoSTs-IN FEDERAL COURTS.
Pending an action by petitioner in the state courts against defendant company for damages for personal injuries. an action was brought in the federal court to foreclose a mortgage on defendants' property, and lI"receiver was appointed, whereupon petitioner intervened in the foreclosure proceeding. and obtained a judgment for the damages; testimony previously taken in the state court being used On the trial of the intervention. Held, that the Costs incurred in the state courts, as well as those in thtl federal court, should be allowed to petitioner.
In Equity. Foreclosure proceedings. Petition of William Kellow, Jr., administrator, for payment of and costa. H. T. Reed and A. Chapin, for petitioner. A.. a. Daly, for receiver. SHIRAS, J. Prior to the initiation of the proceedings' for the foreclosure of the mortgage upon the line of railroad owned by the Central Iowa R14il way Company, William Kellow, Jr., as administrator of the estate of H. E. Carter, brought an action the railway company to recover damages on the ground that Carter's death had been <laused, by the negligence of the company, the action being brought in the state court.· On the trial of the case a verdict for defendant was ren·dered, which the trial court set aside, and ordered a new trial. On appeal to the su preme court of the state this order was affirmed. 23 N. W. Rep. 740, and 27 N. W. Rep. 466. In the mean time, proceedings for the foreclosure of the mortg,age resting upon the railroad were instituted in this court, a receiver of the property' being appointed. Thereupon the administrator applied to this court for leave to join the receiver :as a party defendant to the action. pending in the state court, which was refused, whereupon the administrator filed an intervening petition in the foreclosure proceedings, and upon the report of the master that he had shown good cause, the action was set down for trial before a jury, and :at the October term, 1888, of this court a verdict was returned in favor of the petitioner, assessing the damages at $2,500. The present petition seeks an order for the payment of this sum, with interest and costs, including therein the costs on the original triaHnthe
890'
FEDERAL REPORTER,
vol. 38.
·
, circuitooun of Cerro Gordo county and in the supreme court of the state. COunsel the receiver does not question the right to an order for the payment of the damages assessed and the costs in this court, but objects to the claim made for the costs incurred in the proceedings in the state courts. By agreement of parties, the depositions taken in the state court were used upon the trial in this court. In support of the objections against the allow8J;1ce of the costs incurred in the state courts it is urged that the proceedings therein are entirely independent of the action in this court I and the, costs thereof cannot be tacked to the judgment in this court, and, further, that a judgment or claim for costs ,is not a judgment for a personal injury within the meaning of section 1309 of the Code of Iowa, which declares that a judgment against a railway corporation, for an injury to the person, is a lien upon the corporate property superior to the lien of all mortgages executed since the 4th day of July, 1862. The declaration of the statute that "a judgment against any railway company for any injury to any person," etc., properly construed', means that a judgment rendered for the damages caused by an injury to a person shall be a superior lien, and in this sense damages may include tbe costs incurred in the enforcement of the claim. The statute makes the judgment the superior lien; that is, the judgment in its entirety, and not so much of it as covers only the direct damages caused '. by the injury to the person. The statute of Iowa confers the right ,to award costs as apart of a judgment against a losing party, and section 1309 declares that a judgment against a rail way pany for injuries to the person shall be a lien upon the corporate propa proper part of a judgment in such cases, they as erty. Costs rightfully enter into the judgment as any other items of damage included thereih, and are equally within the protection of the statute in In Institution v. Jersey GUy, 113 U. S. 506, 5 Sup. Ct. Rep. 612, the supreme court holds that the costs incurred in the foreclosure of a prior mortgage are entitled to the same priority as the mortgage debt over subsequent liens. In principle this covers the question of the costs necessarily incurred in the procurement of a judgment for personal injuries, and justifies the holding that the costs necessarily resulting from the action to procure the judgment and enforce the lien will come within the protection of the statute. There is plausibility in the objection that the judgment in this court is in an.entirely different proceeding fro\U the action in the state court, and that the costs in the latter cannot be made part of the costs in this conrt. Tbechange in the proceedings was not due to any fault of the plaintiff,butwas caused by the foreplosure proceedings, and the appdintmentof the receiver. Had the plaintiff pursued theaetion in the state court to So judgment, and bad then brought a petition in this court, asking 'an order for the; payment thereof, it would have been granted, and the order would have included the payment of the entire judgment In the statecourtj that is, the costs in that court would have been paid, as well as the remainder of the judgment. Instead, however, of pursuing the action in the state court, the further litigation was had
UNITED STATES TRUST CO. II. WABASH W. BY. CO.
891
this court,but the testimony taken in the state court was used in thiH court. The present proceeding iain equity, and the court should deal with this question according to the real equities of the parties. In assessing the costs upon the finaljudgment, the petitioner is entitled to show the total costs made in the entire proceedings, for it cannot be denied that the several steps taken, whether in the state or federal courts, were all intended to accomplish the one end,and, while technically they lDay be said to be independent of each other, they in fact form part of the oue proceeding,and are so connected together in fact as to sustain the right to so view them when settling the matter of costs. The petitioner is therefore entitled to an order for the payment of the judgment, including therein the costs made in the state courts.
UNITED STATES TRUST
Co. v.
WABASH
W. Ry. Co.
(Oircuit Court, S. D. Iowa, W. D. March Term, 1889.) 1. >-
A mortgage on the rolling stock of a certain division of a ,railway contained a covenant to designate in a certain mode as belonging to that divis· ion such a ,proportion of the whole rolling stock owned by the mortgagor as that division bore to the Held, that against subsequent mortgagees of the entire system of railway. the first mortgage covered only such rolling stock as was thereafter designated as belonging to the division nall)ed, though the amount covenanted for was not so designated. SAME.
ORTGAGES-ROLLING STOCK OF RAILRoADs-LmN.
Where rolling stock has been purchased and designated for the division named. the lien of the first mortgage attaches and is not lost by subsequent obliteration of the designations. wbere such rolling stock is otherwise traceable, as against the mortgagor, or purchasers at a sale under a subsequent mortgage of the entire railway and appurtenant rolling stock, who take with notice of the former mortgage and the lien created thereby.
In Equity. Supplemental bill to determine what rolling stock belongs to the Omaha Division of the Wabash, St. Louis & Pacific Railway. On exceptions to master's report. Theodm'e Sheldon, for petitioner. H. S. Priest, for defendant. SamAs, J. On the 15th of February, 1879, the St. Louis, Kansas City & Northern Railway Company executed a mortgage to the United . States Trust Company on the lioe of railway elCtending from Council Bluffs. Iowa, to Pattonsburg, Mo., which was then about to be constructed; and whicb, when built. was known as the Omaha Division, and which formed part of the system of lines consolidated under the name of the Wabash, St. Louis & Pacific Railway. By its terms the mortgage was to cover the rolling stock belonging thereto; and for the purpose of designating the sl,tme and distinguishing it from the rolling stock appurtenant to the main line and other branches of the road, it was provided in
