922; between tthose'c1afulsunder a contractwblch reSult from a, it it, has
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P;HINIZY et at. v. AUGUSTA & K. R. CO. et at. " ·. ··"r' ': 0]' NIiJWYORK v. POR'f ROYAL & W. C. RY. CO. Court,D. South Carolina. November 5, 1894.)
JUDGM:EN't AG,HNilT;:RAILROAti-PERSONAI, II'iJURIES-PmORITIES.
Under AeonS. C. Feb. 9, 1882, declaring that a judgment against a railrQad !J0l.l;lpany f{)l,'ipersonal inj1,1ries shall take of a mortgage to secwe a will no! precej:lenceof a mortgage given before the act, but will of one given thereafter, ltnd before the injury for which judgment is obtained. '
2. RECEIVi!:nsL-PAYMEN'C " . Where, ,after the li>uch ju<lgment, a ,rel:!eiver: ot the road is appointed, to foreclose mortgages. he will not be directed to immediately pay the judgment,; the road bei,ng utterly insQ}vent at the .time othiSo.appointment, and ther!:! being other like claims, and the amount :available. therefor being uncertain.
P.BINIZY, V. AUGUSTA &: K.
a.co.
923
Suits: by Charles H. Phinizy and Alfred Baker, trustees, against the Augusta & Knoxville Railroad Company' and the Port Royal &, Western Carolina Railway Company, and .by'the Central Trust Company of New York against the Port Royal & Western Carolina Railway Oompany, for foreclosure of mortgages. and appointment of reeeiver;56 Fed., 273; 62 Fed. 679, 771.o.or.a ,:Madden petitions for payment of a judgment by the receiver therein appointed. Haynsworth & Parker, for petitioner. S. J. Simpson, for respondent. SIMONTON, Circuit Judge. This is a petition praying payment judgment obtained against the Port Royal & Western Oa1'olinaRailway Company. The petitioner,a'passeilger 'on the between Greenville and Laurens, was injured 'in her person, through the, alleged negligence of the agents of on the April, 1890. She began her action against, the company on 2tst January, 1891, in the court of common pleas 9f the state Carolina, at Laurens Courthouse, .and obtained ,'3. verdict in February, 1898. Judgment was entered,opthis verdict arid on 9th of March, 1893. This judgmerit was affirw-ed by the supreQle court,27th July, 1894. 19 So E.951. She Claims the verdict, with interest from 28th February, 1893, and costs, Judgments in South Carolina carry int.erest after entry. Gen. St. S. C. § 1289. The prayer of the petition is (1) that the receiver be instructed to pa.y her the amount of her claims; (2) if hebe"not nOw in funds to , do this, that he be directed to pay the claiIn' o,ut of any profits which may hereafter come into his hands from the operation of the road; (3) that the said judgment be declared and established as a lien on the profits, property, and franchises of the railroad company, having priority to any mortgage or deed of trust thereon, and for general relief. The law in South Carolina in force when this action was brought and this judgment was rendered is as follows: '
-or a
"Whenever a cause of action shall arise against any railroad corporation, for personal injury to property, sustained by any person or persons, and suCh cause of action shall be prosecuted to judgment by pet"Son or persons injured, or his or their legal representatives, said judgment shall relate back to t1le date when the cause of action arose, and shall be a lien as of ,that date of equal force and effect with the lien of employees for wages, upon the income, property and franchises of said corporation, enforceable in any court of competent jurisdiction, by attachment or levy and sale undm' execution, and shall take precedence and priority of payment of any mortgage or deed of trust, or other security given to secure the payments of bonds made by said railroad company: provided, any action brought under this section shall be commenCEf!d within twelve months from the time that said injury shall have been sustained·,''' , Gen. St. S. C. <§ 1528.
,£ort Royal & Western Carolina Railroad Company was made up of the consolidation of other railroads; ;3.l)long them, the Augusta & Knoxville Railroad, extending from Augusta, Ga., to Greenwood, So C. At the time of the consolidation, bonds secured by a mortgage of the whole road were issued, which relieved aU outsta,nding- obligations thereon, except a mortgage on that part
:924
FEDERAL REPORTER,
vol. 68;
of it. heretofore knowtll. aS'the Augusta,,·& Kn<ixvilleRailroad. The date of this consolidSrted;mortgage was 2d May, 1887,; that of the Augusta &.Kno:x:vi,llei,Baill'oadwu 1, 1880. The act quoted abol':e; wasapprovedi9th>February; 1882. There{caq, peno doubt that this judgment, obtailled:and entered in a court of oornpetentjurisdiction, is entitled tofuH faith and credit in this.eonrt, andcannot'.,here be impeached or Jllodified. The defendant has had its dayin court,alld the matter js res judicata. There, also can be no doubt that so far. as the Port Royal & Western Carolina Railway, and the bonds and mortgage· made by it, are company was, and asthe.bonds aIld , .the . of the l/He.' ,of 1882,-they the proyisJons of this ' having ful6fthat act, back to, arose; apll it paYDlent of ,this and given therefor..!lU.t. } ..)it.h ,r.espe.ct . ,'o.th.e .mo.rtg ,:e of tlie,.A. ..', ."Is.t. a, & K.nom.Ue .. .. . . ' C@1panY,and the s,ecured by H, were issued t4 ,the the act 0(1882; a first '·by contIlact, that rQa:d; ,to the by this ,'}t . pisplaced. py act,. for 'su,ch a construe,tion wo.utd theo;pllgation ,of the contract.,.', When this propert:y weutipto the hltndlil,ofa receiver of this cOllrt, was, and for a long been, insolventneverhavi,ng made any earp.pay expenses. Ther,e had been no diverequity setup in Fosdick v. Schal,!; sion, 99 U. S.,2$,5"couldopera,te,even wereJhis chUm among those favored by equity. ' ,.' present lJO difficulty. The priority of the petitioner coyered by the Of the Augusta & over Knoxville 'Railroad cannot be disputed. She asks, however, an immedia1;e for its· payment, oqtof the fUlJdsJ;l.0w in the hands or out of such as lUay come into 'hif3 hands. A.s we of the have seen,the,property came into the hands of the receiver utterly JUI be has recejved are of the receivers1;l.ip,. pr:l.JJlarily to be appropriated to '.the expenses of the receivership. . Besides this, the claim of the petitioner is not the only claim onthose'Ml1lings, entitled to be paid therefrom in preference to all oth'ers.. The act of assembly her a preference, and priority over i;p.e,bonds and the mortgage only. ·There may be {lthers; indeed, there· is a suit now·· pending of another in her class. They equally canoome in' with her. The past-due conpons of the Augusta & KXloxville Ba.ill'(),ad have their claim upon a part of these earnings, to the extent which that road thereto. The extent of this, may be '. seen from" tbe fact that this Augusta&>}tnoxville commands the outlet of the system, -"is of the The ascertainment of the proper proportion of tbese earnings' to 'those coupons is manifestly a matter of intricate and difficult determination. It is impossible, therefore, at this time, to the prayer of the petition. .The justice and validity of her claim, however, are recognized, and at the earliest a. . ' g.
HARTFORD FIRE INS. CO. V. WILLlA:\fS.
925
moment it will be provided for. In any event she will be amply secured out of the proceeds of sale. It is ordered, adjudged, and decreed that the judgment held by the petitioner, Dora Madden, is a proper claim against the property and franchises of the Port Royal & Western Carolina Railway Company; that said claim take priority and precedence over the mortgage of the said railway company, executed to the Central Trust Company of New York, bearing date 2d May, 1887, and over the bonds secured thereby; that in any order of sale hereafter to be made of said property and franchises this pri. ority and preference must be provided for and secured; that the amount of said claim is $5,000, with interest from the 9th day of March, 1893, and costs, $97.45.
KING v. MOSHER et al. , (Circuit Court of Appeals, Eighth Circuit. October 15, 1894.) No. 444. In Error to the Circuit Court of the United States for the District of braska. Action by Shepherd H. King against Charles W. Mosher and others, commenced in the district court of Lancaster county, Neb., and removed on petition of defendants Into the circuit court of the United States for the district of Nebraska. There was an order overruling a motion to remand the cause to the state court and sustaining a demurrer to the complaint, and a final judgment for defendants. Plaintiff brings error. Aftlrmed. Allen W. Field and Edward P. Holmes, for plaintiff in error. T. M. Marquette, J. W. Deweese, F. M. Hall, and F. E. Bishop, for defendants in error Homer J. Walsh and others. Charles O. Whedon and Charles E. Magoon, for defendant In error Thompson. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. of Bailey v. Mosher (No. 418, decided at the present term) 63 Fed. 488, and
CALDWELL, Circuit Judge. This case is similar in all respects to the case
on the authority of that case the judgment of the circuit court is afllrmed.
HARTFORD FIRE INS. CO. v. WILLIAMS et al. (Circuit Court of Appeals, Eighth Circuit. October 22, 1894.) No. 454.
1.
FmE INSURANCE-MoRTGAGE CLAUSE-ADDITIONAL INSURANCE-PRORATING.
The. provision, in a mortgage- clause of a fire policy, that the insurer "shall not be liable under this policy for a greater portion of any loss than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein," requires the mortgagee to prorate with all policies on the property, and is not limited to policies covering his Interest, notwithstanding a prior general provision in the mortgage clause that "this insurance, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor or owner."