[207] THE CENTRAL TRUST COMPANY OF NEW YORK, Appt.,
THE GRANT LOCOMOTIVE WORKS ET
ited by statute for taking an appeal from the de-
cree sought to be reviewed.
[Nos. 1277, 1278, 1279, 1280, 1281, 1282.]
Submitted Mar. 31, 1890. Decided Apr. 21, 1390.
THE DAYTON, FORT WAYNE AND APPEALS from decrees of the Circuit Court
CHICAGO RAILROAD COMPANY, Appt.,
of the United States for the Southern District of Ohio decreeing payment in Nos. 1277, 1278, 1279, 1280, of certain amounts due inTHE GRANT LOCOMOTIVE WORKS ET tervening petitioners out of the sum bid on a
mortgage foreclosure sale, and that, in deTHE CENTRAL TRUST COMPANY OF resold; and from decrees striking from the fault of payment, the mortgaged property be
THE DAYTON, FORT WAYNE AND
CHICAGO RAILROAD COMPANY, Appt.,
files bills of review in Nos. 1281 and 1282.
Nos. 1278 and 1280 dismissed. Nos. 1277,
1279, 1281 and 1282 affirmed.
Statement by Mr. Chief Justice Fuller:
On August 1 and 2, 1883, upon a creditor's
bill brought by Granville D. Braman, a
judgment creditor of the Toledo, Cincinnati
and St. Louis Railroad Company, Edwin D.
THE CENTRAL TRUST COMPANY OF Dwight was appointed receiver of all the
THE GRANT LOCOMOTIVE WORKS ET
AL.
property of the company in Illinois, Indiana
and Ohio, by orders made in the Circuit
Courts of the United States in Districts of
those States. August 14, 1883, the Central
Trust Company filed its bill in the United
THE CENTRAL TRUST COMPANY OF States Circuit Court for the Southern District
(See 8. C. Reporter's ed. 207-227.)
of Ohio, against the Toledo, Cincinnati and
St. Louis Railroad Company, the Cincinnati
Northern Railway Company and the said
Braman and another, asking a foreclosure of
certain mortgages therein described. This
cause was numbered 3554.
Appealable interest-final decrees, when vacat-pany filed its bill in the same court against
ed-intervening petition-discretion of court,
not reviewable-appeal, what it brings up
bills of review, when brought.
1. Purchasers at a mortgage-foreclosure sale under
a decree which provided for the payment in cash
of sufficient of their bid to pay claims adjudged
to be prior in equity to the mortgage or for a re-
sale of the property, cannot, nor can their as-
signee, appeal from the orders adjudging that
such claims be paid by them out of the amount
of their bid or that the mortgaged property be
resold; they have no appealable interest in the
premises.
In October, 1883, the Central Trust Com-
the Toledo, Cincinnati and St. Louis Rail-
road Company, the Toledo, Delphos and
Burlington Railroad Company and the said
Braman, for a foreclosure of certain mort-
gages therein set forth, which cause was
numbered 3578. On October 25, 1883, one
William J. Craig was appointed receiver of
the mortgaged property in each of these
causes, took possession of it and superseded
the possession of the former receiver, Dwight.
October 27, 1883, the Grant Locomotive
Works and the American Loan and Trust
Company by leave filed their intervening
2. The court below cannot of its own motion va-petition in No. 3578, setting up a contract
cate its final decrees, after the close of the term between the Toledo, Cincinnati and St. Louis
at which they were made.
Railroad Company and the Grant Locomotive
8. A decree upon an intervening petition in a fore- Works, for the leasing and conditional pur-
closure suit against a railroad company, adjudg-chase by and sale to the railroad company of
ing that certain locomotives used by that com- ten locomotives, Nos. 57 to 66, for the price
pany under a contract for their purchase should of $105,000, payable in installments, the title
be paid for from the sale, is a final decree.
to the locomotives remaining in the Grant
4. The refusal of the court below to allow plead- Locomotive Works until payment was fully
ings to be amended and the denying an applica- made; that the whole purchase price was
tion to intervene are matters in the discretion of represented by bonds of the railroad company,
that court with which this court will not interfere. made payable at the office of the American
5. Where an order is merely in execution of a Loan and Trust Company at Boston, and cer-
former decree, an appeal from the order does not tified to by said trust company as trustee;
bring the former decree up for revision.
6. Bills of review for errors apparent of record Louis Railroad Company; and praying a sur
the default of the Toledo, Cincinnati and St.
must ordinarily be brought within the time lim-render of the ten locomotives and the pay;
NOTE.-Bill of review; nature of; when may be
brought; who may maintain; time within which to
be brought; what it should contain. See note to
Bank of U. S. v. Ritchie, 8: 890; also note to Shel-
ton v. Van Kleeck, 27: 269.
ment of all arrears due for rent, interest and
repairs up to that time under said contract,
and also of any deficiency that might arise
upon a resale by them of the said ten locomo-
tives, and for other relief.
On the same day, R. S. Grant filed in No. | permanent equipment, and that the value of
3554 his intervening petition, alleging a said locomotive as fixed in said agreement of
similar contract with the Cincinnati Northern lease is reasonable, and that the petitioner,
Railway Company in respect to other locomo- R. S. Grant, the owner of said locomotive
tives at the price of $90, 558.97, of which $18,- and tender, is willing, upon receipt of the con-
558.97 was paid in cash, and the remaining tract price or upon being adequately secured
$72,000 was made payable in monthly install- therein, to transfer the title of the same to
ments, represented by bonds of the Cincinnati the receiver;
Northern Railway Company, the payment of
which was assumed by the Toledo, Cincinnati
and St. Louis Railroad Company, upon con-
solidating with the former company in 1883,
the title to the locomotives remaining in the
said Grant until payment in full was com-
pleted; the default of the Toledo, Cincinnati
and St. Louis Railroad Company; and pray-
ing for the return of the locomotives; the
payment of all arrears due for rent, interest
and repairs up to that time, and also of any
deficiency that might arise upon a resale of
the said locomotives, and for other relief.
On December 6, 1883, Craig, as receiver, by his attorney, filed his answer to the intervening petitions, admitted the agreements and the defaults in payment, and further answered that all the locomotives were in his possession and were necessary to the operation of the railroads by him, and prayed that the court would make such order as would enable him to retain the possession and use of the locomotives. On the 17th of December, 1883, the attorney of the receiver notified the judge of the court that there was no reason why judgment should not go upon the intervening petitions, and that there was no objection to the draft of decrees, as the receiver had only resisted claims for damages, and these had been waived. On the 22d day of December, 1883, of the October Term, two orders were entered in each of said causes Nos. 3554 and 3578, in favor of the intervening petitioners. The two in favor of R. 8. Grant in No. 3554 were as follows:
"The said cause came on to be heard upon the petition and the answer of the receiver thereto and upon the evidence submitted on behalf of said petitioner.
"And it appearing to the satisfaction of the court that the receiver has in his possession Grant locomotive No. 73, and is using the same in the operation of the said Cincinnati Northern Railway Company between Cincinnati and Dayton, Ohio, and that said locomotive is one of the ten covered by the agreement of lease set out in said petition, and was acquired by said railway company under the terms of said agreement, and was so held at the date of the appointment of the receiver herein;
"And it further appearing that the present receiver or his predecessor took the said locomotive, with its tender, into his possession as such receiver on the first day of August last, and has had the same in continuous use and possession since that date without having made any of the monthly payments of rental as provided in said indenture of lease, or other compensation for the use thereof;
"And the matter being fully heard by the court and upon due deliberation thereon, it [211] is hereby ordered, adjudged and decreed that the receiver pay to the said petitioner as rental for said locomotive and tender and in full for all claims for rental, interest and repairs down to the first day of December, 1883, the sum of $770.48, the same being the amount due to said date under the terms of said lease.
"And the further sum of $7,520, balance in full as purchase money for said locomotive and tender.
"And it is further ordered that the receiver pay said several amounts as part of the operating expenses of the said railway out of any money not appropriated for the payment of current labor, supplies and taxes.
"And it is further ordered and decreed that the said several amounts with interest thereon at the rate of six per cent from the first day of December, 1883, shall be a charge upon the earnings, income and all the property of the said Toledo, Cincinnati and St. Louis Railroad Company, and especially of the said Cincinnati Northern Railway Company, as ahead of the first-mortgage or other bonded debt of said company or either of them; and any balance of said several amounts remaining unpaid at the date of the foreclosure and sale of said railways shall be a first lien thereon, and the said sale shall be made subject thereto."
The second order commenced:
"The said cause came on to be heard upon the petition and the answer of the receiver thereto and upon the evidence submitted on behalf of said petitioner. And it appearing to the satisfaction of the court that the receiver has in his possession Grant locomotives numbered 67, 68 and 72, with their tenders, and is using the same in the operation of the said southeastern division of the said defendant company's railroad, between Dayton and Wellston, Ohio, and that the said locomotives are three of the ten covered by the agreement of lease set out in said petition and were acquired by said railway company under the terms of said agreement, and were so held at the date of the appointment of the receiver herein."
This order continued in the terms of the
preceding one, and decreed certain amounts
for rentals, interest and repairs down to [212]
December 1, 1883, and a further sum in full
tenders, and concluded as follows:
as purchase money for said locomotives and
"And it is further ordered that the receiver
pay said several amounts as part of the
"And it further appearing that the said loco-operating expenses of the said southeastern
motive is, in the judgment of the receiver, division out of any money not appropriated
necessary to the proper operation of said rail- for the payment of current labor, supplies
way and should be acquired as part of its and taxes.
"But the court defers the determination of the amount of such compensation until the coming in of the report thereon of the master appointed in this cause on the 5th day of April, A. D. 1884.
"And it is further ordered and decreed of this cause upon the railroad of the Cinthat the said several amounts, with interest cinnati Northern Railway Company, defend. thereon at the rate of six per cent from the ant herein, and for any deterioration by rea1st day of December, 1883, shall be a charge son of such use. upon the earnings, income and all the property of the said Toledo, Cincinnati and St. Louis Railroad Company, and especially of the said division, prior to the first-mortgage or other bonded debt of said railroad or said division thereof, and any balance of said several amounts remaining unpaid at the date of the foreclosure and sale of said railroad or said division shall be a first lien thereon and the said sale shall be made subject thereto."
Upon the 7th day of March, A. D. 1884, the same being one of the days of the February Term, 1884, of the court, these orders were suspended by an order of court, the petitioner objecting.
Un the 15th day of March, A. D. 1884, the Central Trust Company filed its petition in the cause, which it prayed might be taken as an answer to the intervening petition of Grant, and also as a petition for rehearing and review of the orders of December 22, 1883, which it further asked should be an nulled and set aside.
On the 10th day of April, of the April Term, 1884, an order was entered in the circuit court as follows:
"This day this cause came on further to be heard upon the intervening petition of R. Suydam Grant, filed in this cause October 27, 1883, and the court, being fully advised in the premises, does order, adjudge and decree as follows, to wit:
"The court finds that the two decrees herein made and entered upon said intervening petition on the 22d day of December, A. D. 1883, were entered without notice to the complainant herein and without proof; that the [213] said decrees are erroneous and unjust to the bondholders for whom said complainant is trustee; that said decrees are not authorized by the pleadings, and are based upon a misrecital of the facts, as evidenced by the record of this cause.
"That said decrees were authorized by the court without examination in the erroneous belief, entertained at the time, that all the parties in interest had assented to said decrees, and that the parties adversely interested acquired no knowledge of the allowance of said decrees until about the 24th day of February, A. D. 1884, and after the adjournment of the term of court at which the same were entered. "And thereupon it is by the court, of its own motion, ordered, adjudged and decreed that the said decrees be, and they are hereby, annulled, set aside and held for naught.
"And the court, coming now to determine the question arising upon the said intervening petition of R. Suydam Grant, does order, adjudge and decree as follows, to wit:
"That the relief prayed for in the said intervening petition be, and it is hereby, denied except as hereinafter provided.
"And the court does further find that the said petitioner is entitled to fair compensation for the use of said rolling stock described in his said intervening petition by the receiver
"And the court does further find that the said petitioner is entitled to take and repossess himself of his said rolling stock, wherever the same may be found, in the possession of the receiver appointed in this cause, or of the receiver appointed in causes No. 3576, 8577, 3578 and 3579 in this court.
tioner to apply at any time to this court for "And leave is hereby granted to said petiany additional orders that may be necessary
for leave to answer the petition of the com"And the said R. Suydam Grant applied plainant, the Central Trust Company, filed March 15, 1884, and to support his answer by affidavits or other proof, and the court, entertaining the opinion that the answer and affidavits proposed are, by the force of the foregoing decree, rendered unnecessary, declined to grant the leave asked and refused to permit an answer to said petition for rehearing, on affidavits or other proof in support thereof, to be filed; and thereupon the intervening petitioner, R. Suydam Grant, in open court, prayed an appeal from the foregoing decree, which is disallowed by the court."
Two like orders, mutatis mutandis, were entered in case 3578 on the petition of the Grant Locomotive Works and the American Loan and Trust Company, December 22, 1883, and were suspended March 7, 1884, and set aside April 10, 1884, by similar orders to those in No. 3554.
In June, 1884, the southeastern division of the Toledo, Cincinnati and St. Louis Railroad Company was sold under a decree of foreclosure, which sale was reported and confirmed July 18, 1884. The Cincinnati northern division of the said railroad was sold under a decree of foreclosure and the sale confirmed by order made on July 9, 1884. The decree for the sale of the southeastern division provided that unless the railroad company defendant should within ten days. pay into court the amount of interest in arrear and the sum of $20,000 to be applied to the payment of costs and expenses, including the receiver's indebtedness, then the property should be sold, and that upon the sale not less than $20,000 should be paid in cash and such further portions of the purchase price should be paid in cash as the court should from time to time direct, to meet other claims which the court should adjudge to be prior to the first mortgage, the court reserving the right to resell in case of failure to comply with any order in that regard; and that the balance of the purchase money should be paid either in cash or bonds taken at their net value under the decree. The fund arising from the sale was directed to be applied to the payment: 1st., of costs, fees and expenses of
sale; 2d, of receiver's expenses and indebtedness, "and to the payinent of any other claims which have been or which may be [215] adjudged by this court in this cause to have priority over said first mortgage; " 3d, to the payment of the first-mortgage bonds. The decree for the sale of the Cincinnati northern division made provisions similar in all respects, except that the amount to be paid for costs and expenses and the amount of the bid to be paid down in cash was $50,000. The southeastern division was sold to N. H. Mansfield and others as trustees for $500,000, and the Cincinnati northern division to J. N. Kinney, A. S. Winslow and others for $200,000. On the confirmation of each of the said sales, it was ordered that the purchasers upon paying in cash the $20,000 or the $50,000, respectively, should receive a conveyance of the mortgaged property and become subrogated to all the rights thereof of the lien holders, parties to the suit, and that the receivers should thereupon surrender possession of the mortgaged property to such purchasers. Each of the orders of confirmation contained the following clause :
"This cause this day was heard upon the
petition of R. S. Grant and the Grant Lo-
comotive Works, respectively, herein, filed
February 8, A. D. 1887, praying that the
court set aside certain orders herein before
made on the 10th day of April, 1884, setting
aside certain other orders theretofore made
herein on December 22, 1883, upon the in-
tervening petition of R. Suydam Grant, filed
herein on October 27, 1883, and was argued
by counsel; and the court being fully ad-
vised in the premises it is ordered, adjudged
and decreed that said order of said 10th day
of April, A. D. 1884, be, and the same
hereby is, set aside and held for naught,
and that said orders of December 22, 1883,
be, and the same hereby are, restored.
And thereupon came complainant, The
Central Trust Company, and prayed an ap-
peal to the Supreme Court of the United
States from this decree setting aside said
order of April 10, 1884, and restoring said
orders of December 22, 1883, which appeal
is allowed upon complainant giving bond in
the sum of five hundred dollars for costs, to
be approved by the clerk of this court."
The appeals so allowed were never perfected.
"And it is further hereby ordered, adjudged
and decreed that this decree of confirmation January 28, 1889, the intervening peti-
of the sale of the premises and property, tioners having moved that the purchasers of
rights and franchises, aforesaid, be subject the railroad property be required to pay into
to the terms and provisions of the decree of the registry of the court for the use of the
sale heretofore entered in this cause, where- intervenors the amount due under the decrees,
by it is provided that of the purchase price and that in default thereof the said railroad
so bid at said sale such further portions company property be resold for the benefit
thereof, in addition to the said sum of fifty of the intervenors, decrees were entered in
thousand dollars heretofore mentioned, shall each case, reciting: "And the said in-
be paid in cash as this court might from tervenor being present, by his counsel, and
time to time in this case direct, in order to the purchasers of the Dayton and of the Cin-
meet other claims which this court has or cinnati divisions being represented by C.
hereafter may adjudge in this case to be W. Fairbanks, their solicitor, and the Cin-
prior in equity to said first mortgage, and cinnati, Lebanon and Northern Railway Com-
whereby this court did reserve the right to pany, assignee of the purchasers at the fore-
resell in this cause said premises and prop-closure sale of the Cincinnati Northern
erty, rights and franchises, upon the failure
to comply within twenty days with any
order of this court in that regard; and the
right, title and interest of the said purchasers
in and to the premises and property, rights
and franchises aforesaid by virtue of the said
sale and of this confirmation thereof and of
the deed to be made in pursuance hereof
shall be deemed to be acquired subject to
said provision.'
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On the 8th day of February, 1887, the Grant Locomotive Works and R. S. Grant [216] severally filed petitions in the causes Nos. 3554 and 3578, setting up the matters hereinbefore detailed, and alleging that the orders of April 10, 1884, purporting to annul the decrees of December 22, 1883, were void; that the decrees were still in full force; and praying that the said decrees of December 22, 1883, be adjudged to be in full force and effect, and that the same be carried into execution. The Central Trust Company answered, and the purchasers of the southeastern and of the Cincinnati northern divisions demurred, and on the 11th of June, 1887, une Iollowing order was entered on each of said petitions :
Railway, by William M. Ramsay, its solici-
tor, and the Dayton, Fort Wayne and Chicago
Railroad Company, assignee of the pur-
chasers of the southeastern division, and of
the purchasers of the Iron Railroad, by John
C. Coombs, its solicitor, and R. D. Marshall,
the present receiver of the said railroad com-
pany, and the purchasers of the main line,
the Toledo terminal and the St. Louis divis-
ion, being present by Clarence Brown, their
solicitor, objecting to the jurisdiction of
the court, and the complainant, the Central
Trust Company of New York, opposing said
motion of the said intervenor, being repre
sented by Edward Colston, its solicitor.
And thereupon, pending the hearing upon
the said motion, comes the complainant, the
Central Trust Company of New York [and
prays that its petition for rehearing, filed]
on the 15th day of March, 1884, be now heard
as a petition for a rehearing of the said de-
crees of December 22, 1883; or, if that relief
be denied, that the same be taken and held to
be a bill of review, or a bill in the nature
of a bill of review; or if that relief be de-
nied, that the said petition be amended and
supplemented in certain respects, as stated
in a certain paper now read, and be now
docketed as an originai bill of review as of the clerk's office of the circuit court its bill [219]
the 15th day of March, 1884," which appli- of review against the Grant Locomotive
cation and each part thereof was denied, and Works and the American Loan and Trust
the Trust Company excepted; and also, pend- Company, stating the filing of its bill of
ing the hearing, the Dayton, Fort Wayne foreclosure October 20, 1883, in No. 3578;
and Chicago Railroad Company, as assignee the appointment of Craig as receiver; the
of the purchasers of the southeastern divis-filing of the bill in No. 3554, and in three
ion, prayed leave to intervene and be heard
“in review upon the matters of the original
orders and decrees entered herein on De-
cember 22, 1883, and as set forth in a peti-
tion in writing therefor," which it moved
the court for leave to file herein, which ap-
plication was denied and the railroad com-
pany excepted.
other cases; the objects of the five bills; the
filing of similar bills in October, 1883, for
the foreclosure of mortgages, made respect-
ively by other constituent companies on their
respective roads, which roads when connected
would form a line of railroad extending from
Delphos to Toledo, Ohio, and from Delphos
through Indiana and Illinois to East St.
The court, then, having heard argument, Louis, Illinois, in the proper Circuit Courts
decreed that the respective purchasers should of the United States for the Northern District
make payments into court, within sixty of Ohio, the District of Indiana and the
days, of the amounts still due to the inter-Southern District of Illinois; that the Toledo,
vening petitioners, and that in default of Cincinnati and St. Louis Railroad Company
[218] such payment the mortgaged property should was a corporation formed by the consolida-
be resold. The decrces recited the setting tion, under the respective laws of Illinois,
aside, on the 11th of June, 1887, of the orders Indiana and Ohio, of the above-named con-
of the 10th of April, 1884, as void, and that stituent companies and other companies, ex-
all the orders or decrees entered in pursuance tending from St. Louis to Delphos, thence
or in execution of the said order of April 10, to Toledo, and from Delphos to Cincinnati
1881, were equally void and of no effect; and Ironton; that each mortgage was a sepa-
and that the decrees entered on December 22, rate and distinct mortgage upon separate
1883, were in full force and effect; and as- property, there being no property in one
certained the amounts remaining due, after mortgage included in another; that all of
deducting credits, to the Grant Locomotive said mortgages were made prior to any con-
Works for locomotives, which had been used solidation and were entirely unaffected there-
upon the southeastern division, with interest by; that on October 27, 1883, the American
from a date named, and for a locomotive Loan and Trust Company and the Grant
which had been used on the Cincinnati north- Locomotive Works filed their intervening
ern division; and the amounts remaining petition in No. 3578, a copy of which is at-
due, after deducting credits, to Grant for tached to and made part of said bill of re-
certain locomotives which had been used on view; that certain orders were entered there-
the southeastern division, and for a locomo- on, set aside, etc., giving the proceedings
tive which been used on the Cincinnati in detail; that the railroad was sold on fore-
northern division, with interest; and ordered closure in No. 3578 in June, 1884, but not
that the amounts should be paid, and upon subject to any claim or lien for locomotives,
default thereof the divisions should be sold and none of the locomotives were included
to realize the said amounts respectively. It in said sale, but were treated as the property
was provided also that the decrees were of the Locomotive Works and Grant; that
"without prejudice to any right the said in- they subsequently took and removed said
tervenors may have to apply for orders to locomotives; that in February, 1887, the
resell other mortgage divisions of the Toledo, Grant Locomotive Works and Grant filed
Cincinnati and St. Louis Railroad for the petitions to set aside the orders of April 10,
payment out of the proceeds of such resale 1884, and restore the orders of December 22,
of any balance of the amount hereinbefore 1883, which petitions were granted on June
named;" and without prejudice to the right 11, 1887, and the orders of April 10, 1884,
of contribution as between the purchasers of were set aside and adjudged to be null and
the divisions named and the purchasers of void, and the orders of December 22, 1883,
other divisions of the Toledo, Cincinnati and were restored; that the Grant Locomotive
St. Louis Railroad. From the orders of Works filed its motion in No. 3578, asking
January 28, 1889, the Central Trust Company for an order that the purchasers of the rail-
was allowed and perfected appeals to this road sold in that case pay into court the
court, which are here docketed as Nos. 1277 several amounts mentioned in the orders of
and 1279.
December 22, 1883; that thereupon com-
plainant prayed the court to treat such pro-
ceedings of March 15, 1884, entitled "Petition
for rehearing," as a bill of review to correct
said orders, and to permit complainant to
amend said proceedings of March 15, 1884,
by adding thereto the averments contained in
this bill of review, and to docket the same
as thus amended as an original bill of review
as of date March 15, 1884; and that the court
refused to allow the same to be done, and
ordered, January 28, 1889, the railroad to be
sold unless the respective amounts named in
the orders of December 22, 1883, should be
7
101
Exceptions to the rulings of the court, denying the motions of the Trust Company that its petitions filed March 15, 1884, be amended and supplemented, and permitted to be filed as original bills of review as of that date, appear in the records.
The Dayton, Fort Wayne and Chicago Railroad Company was allowed and perfected appeals to this court from parts of three of the said orders of January 28, 1889. These appeals are Nos. 1278 and 1280.
On the same 28th of January the Central Trust Company, by its solicitors, filed in 135 U. S. U. S., Book 34.
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