795 And anera very thoronghandcriticitl discussion or: the question the opinion concludes: ,:', , "ltfollow8 from the views expressed that the court beloweouldttot take jorisdiction oUbie Buit, in, which a claim properly cognizable :only at law iI uoit.edio til8 s/ip;ae ,pleadings witb a claim for equitable relief.", ' And so,must we say in this case. Therefore the dE!Cree the injunction m\l8L be reversou,and· the injunction awl i' is iO or<le.n:1i. '
GltANT (C'reu(t
at".
EAST
&: WEST R. Co.d al.
CC¥Wrt of .Appeall. F1,fth CircuUo lIa180. No.4IL
I.'
A.PrBALAlILB' DBCBBB-DISKI8SAL 0-. AUXILIARY BILL-RBT4I1fIH C""US. POll MAllTII1t'.
An original blll was filed for the purpose of foreclosing a railroad mortgage. A.. a=l1Iary and dependent bill was then filed agalnllt complainant In the original btU, the railrbad, and otbers, charging that certain bonds aecl1red by the mortgage were iDvalld, and not entitled to benefit under the mortgage; Held, that a decree disIt to a master to mlsslnj{ the auxiliary bi1l, but retaining the cause, aod ascertain tbe priority and validity of liens ontbe mortgaged subJect, and marllhal conflicting claill1s to the bonds In question. W8ol1 4nal as to the a=i1iary complainants, and ODe from which they might appeaL
Appeal from the Circuit Court of the United States for the Southem Division of the Northern District of Alabama. Suit by Grant Bros. against the East & West Railroad Company of Alabama and others. From a decree for delendantB, plaintitfa al'peal. On motion to dismiss the appeal. Denied. Wager Swayne, for the motion. A. O. King and J. J. Spalding, opposed. Before McCORHICX, Circuit Judge, and LocxJ:, District ludge. l\lcCoRHJCX, Circuit The American Loan ct. Trust Compnny of New York, in June, filed its bill to foreclose the consoliuated first mortgage of the East & West Railroad Company of Alabama for· the equal benefit of the bolders of the bonds secured by said mortgllge. To this bill the railroad company and James W. Schley and Joel Brown were made defendants. On the 26th of July, 1888, Grant Bros. had leave to file. an auxiliary and dependent bill against the complainant in the ori¢nal bill and the railroad and William C. Browning, Edward F. Browning, Eugene Kelly, John Byrne, John Hull Browning, and Amos G. West. This auxiliary bill was presented in behalf ofcomplainants therein. and all other bondholders Similarly situated, afld charged that complainants and others were the innocent purchasers for value before maturity, and without notice of any defect in said bonds, of a considerable number thereof, and that 966 bonds, in which the defendants named in their bill claimed some interest or ownership, were invalid and illegal, and .not entitled to benefit under said first consolidated mortgage. The defenaantB to the auxiliary bill answered'individually, and the whola suit proceeded in the usual manner, and came on to be heard on the 22d of OctolJer, 1891, "upoa
796
.1',J1l)ERAL REPORTER,
voL
5(}.1
fll'· o£,thlil' proceedings' and pleadings; -including theorigillal .bill of foreclosure, and ,the auxiliary and dependent bill of Grant Brothers, and the inwrYentionof JaQlesW. SchleYi and the several answers thereto, and upon'the proofs taken ,in said several causes, and was argued by coUnsel." And on the 13th of January, 1892, the deCree of the circuit court thereoIl:'w8;s:Jiledthetein" which"arterthe usual findings, covering every D)atedll1 issqe.Jl1ade,by, the parties+ concluded in these words: "It is now ordered, adjudged, and decreed that the auxiliary and dependent bill of James and Frederick Grant be, and the same is hereby, dismissed, with costs; that the intervention of James W. Schley be, and the same is, maintained, so far as to recognize the validity of the judgment obtained by him in the circuit county,.inthesta,teof Alabama, as a valid and binding judgment, with a lien upon the property of the said railroad company, but to,the lien given by the first c:l0rsolidated mortgage of the East & 'tV est Railroad Company!>f Alabama, herein declared foreclosed; and as to all other matters said claim8and interventions of James W. Schley And it is now further ordered, adjUdged, lind decreed that this cause be referred to the special master pro hac ascertain and schedule the mortgaged premises now JI:alltlll,or tbe l'e\l!;l!ver, under the, orders of this court. and to report and determine ,with allconvenient,speetl the, validity and the amount of the liens ontllemortigaged premises, and their relative priority, but in marshaling all to said bonds the said special master shall proceed according to Lhlsdecree and in conformity therewith. And let it likewise be referred to the said master to take an account of what is due to the complain"hose whom complaina.nt claims, for principal and interellt on and bonds so found, outstanding, an,d entitled to the benefits the qf the lien of the said mortgage, lmdfor complainant's disbursements and allowances 'to counsel for the mortgage, and costs to be taxed. And said rnllstefshiUI, iin furthE'ranceof this end,canse advertisements to be published in two newspapers, published one in, Alabama and the other in Georgia, which he may think most fit, to the E'ffect that such lien claimants as have hitherto failed to do so shall come in and interventions within thirty days default thereof, ,they will be excluded from the benefits of any decree in'this suit, 80M fromparUcipation in the proceeds of any sale. ,(\n,d upon and.confirmatiq!1 of said report, let adecree nisi be entered tllat d'efendahtthe East & West Railroad Company of Alabama have thirty days thereafter in which to pay into the registry of the court, to libe credit iof the cause, the,amountsofound due for principal and interest on saidm!>r,tga.ge; but, default of such defendant's paying what shall S9 lje ,foundtQ! b,e"due by the, said raiII:oad i company interest, and !losts by of the time a,foresjiid, then the said defendant the East &; West of Alabama, and the other defendants and interveners claitMl:igtbroLlgh aild under said railroad company,shall from thenceforth gtand absolutely debarretl and foreclosed from all equity or redemption of, in, and to the said mortgaged premises, and every part and parcel thereof. And UP9U the, cpnfi.rmatiol) of the said report aforesaid, any party, intervener, or have to apply for final decree,herein, and for a sale of the mortgaged premises found to \)e embraced in said mortgage, in the event railroad company shall continue to make default in the payment of tlle,pl'incipllland interest; etc., found due on the mortgaged prem" ' ises as
in
was-,allowed' by the . H ;,
illis,
Bros.
an appeal to this court, which and was and in due time
797 the record was filed in. this court. The appellees now move to dismiss aI1peal, "on the ground and for the reason that the said decree is not final, and because the same is not appealable" to this court. Apcontend that the cause cannot be divided SO as to bring up different part!! of it, (citing The Palmyra, 10 Wheat. 502,) and that appellapts will not be injured by denying them an appeal in this of the proceedings. The decisive nature of the order is admitted freely., asis also the right of appellants ultimately to have it reviewed here upon appeal; but counsel urge thatthe appeal has been prematurely taken, and that, when the master's report come& in and is finally acted upon by the coort;upon appeal from that decree every matter in dispute will be 0PlilP to parties in thie court, and may all be heard and decided at,the same time; citing Perkinsv. Fourniquet, 6 How. 206; Iron Co. v. ,Martin, 132 U. S. 91, 10 Sup. Ct. Rep. 82. They contend that the only known qualification of this rule is that, when the decree decides the right,to propertY-in contest, and directs it to be delivered up by one party to versary, or directs it to be sold, or directs one party to pay a certain sum of money to his adversary,and the adversary is en.. titled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to. thispqurt, although of the bill is retained in the circuit court as is neCessary for the pu:rpose of adjusting by a further decree the aothe,parties to the decree passed. In all the cases cited by counsel insllpport of this motion, and in aHthe cases cited and reviewed by Mr. Justice BLATCHFORD in delivering the opinion of the. courtjn.(ron Co. v. Martin.in support of their decision in that case, the d'icrees, though decisi of the main issue between the parties thereto, stillleff:f'6r'further settlement before the master other and dependent issues between the same parties. In this case before us the decree appealed from dismissed the complainants in the auxiliary bill entirely from the case, and also dismissed a number of defendants to that bill entirely from the case. The matters retained for such action of the master as would requiTe confirmation before a decree of sale was to issue were matters between the parties to the original bill, in which the complainants in the auxiliary bill und the defendants not. parties to the original bill had no interest as parties, whatever might be their relation to the bonds and stock of the defendant railroad. In BiU v. Railroad Co., 140 .u.S. 52,11 Sup. Ct. Rep. 690, complainant sought to compel a transfertohim of certain shares of the capital stock of the dMendant company, and for other relief against numerous defendants, who were alleged to be interested, more or less, in the several contracts and transactions out of which the claim of the complainant arose. The cause came to decrea 8th June,1885, and reliefto complainant "upon all matters and things in controversy" thereon was denied, except as to one matter, as to which it was retained against the railroad company and its directors, the only parties,defenda.nt interested in that matter. From this decree the complaillant'prayecian appeal, which was allowed bytheeircuit court, but was notperfecteli Ul due time, and was dismissed for failure to ·file tran-
'01
iftl>bM,
1tEPoltm,
,
'supreme'cotirt1rit tterrri. :As' 'ti)'< the"fu;l.tter , case' proceeded ,to "th'ebrrcuitcoutit; li.11d fut:tberJ:learil';'aild'lb a further January, 1887, , OnthlS )vhich
to the decree "PIaaeri" J'tn'e',,1885;' riBtle'were'ttssigned ils' rdicree of July, 1887; aM -WAS whe\her on 'this appeitl'L\nyof the matters tleterniined'by the decree of: Junet18851 open 'the ,,' , Bre tile of 1885. was a final of that term in respecting the appellate jurisdltition .of thi$ ail 'to all matters determineilby it. and that they are any, furtl,lerconsideratlon. It dispo!,ed of every matter of conthe parH:es. eX:llept as to the aluount orone Item. and referred to that., · ,. · fact. that. I,t WitS not di&o posed 91' of the dpcreeas to the defendAnts against whoni'the bill was disfuislJ!!4;, · . . " They, were no longerparUes to the lftiit: ,"tbfiappeal the subsequent decree not reinlltate ,them. AU the li1etits()f'the controversy pendi n g' between· them and the disposed; of. and CQuld'not,be agl&in reopened. except on ap'I
was' allowed
mel\rlin"
a:,
'!(o1 ,Anyfuttherrmewoftheauthoritiesclted and reliedpn to defeai this xnoti?h in this eaSe is as we are of opinioothat 'the IMteited settles'U1equestionhere Illade before us, 1n6tion should be denied; and it is'So ordered. andtbatthe1 ';"f: , I
.1
PARpri,Circuit Judge; haVing saHnthe circuit court the deciilli'otiappealed 1ru1U, tOok: no part in the heariug ()l dispOsitiuu w tbiI
mouun.
' " . ' , '
(Circu£t Court,
B. Do Ohio, W.D. June., 18112.) No."· .
L B.lmrS-VALrorrr OJ' 0.. VIOB l.'lie C. Bank in faith advanced, monlly oncollatel'al fo.-wardeil by the .vice !lUhe f. a114 theloall to the F. The vice president of the F. 'Bank diJ'eQted tbat the'loan be transferred to hiB individual credit, WbIChW. t.II d,one, Where,uP,bn he fraUdU,l&D,',,tlY"checked out the same for private purpose&., Hetdtthat the vfqe,prellidellt to negotiate the 1oaDo and til.., the validity tDereof was n,ot affected bybisfr/lud.
to"
a.
Rev. tilt. II. 6285,: ,which .provide,. respectively, that. the comptroller. ,oa appointing a r,eceiver for"an insolvep-t nB!;ional ban!f.1. shall adverf.!88 for proof of claimll, alid that heabaU make a ratiloble dividend of 1)nll moneys ,paid over to him " ,1lY the receiyel; au.ong $pse who tbeir CBnnQt be oo!1strued to 1lX the date of the suspension of the bll.n1l; date with reference to which all calc , ouJ,ations to creditorS iite' Illo be made aa a baaiB of dindends. .fter Bucll suspension, Qf. olaim with the Buch was reduced by trom pollaterals, It IIhould have beeu credited 'such collections WDeutiled, aoo the balance,then tQuud due used 8S $he buill for. ascertaining claimant's dividend.
B,UIl!:-NATIONAJ. B4frXs-INSOLVlINOY....SABlii OJ' ·DrVlDlINDB.