83 F. 230 | 8th Cir. | 1897
Upon a bill filed for that purpose by Oliver Ames, Second, and others, in the circuit court States for the district of Nebraska, and in the circuit courts of other districts through which the railway lines of the Union Pacific Railway system as then constituted extended, Silas H. H. Clark, Oliver W. Mink, E. Ellery Anderson, John W. Doane, and Frederic R. Coudert, the appellees, were in October and November, 1893, appointed receivers of the Union Pacific System, which included, in addition to the lines of railway and property of the Union Pacific Railway Company, the lines of railway and property of the Denver, Leadville & Gunnison Railway Company and several other corporations. The receivers above named continued to operate the Denver, Leadville & Gunnison Railway as a part of the Union Pacific System until the 7th day of August, 1894, when they surrendered possession of the property to Frank Trumbull, who had been appointed receiver of the property by the circuit court for the district of Colorado in a foreclosure suit brought by the American Loan & Trust Company, as trustee, against the Denver, Leadville & Gunnison Railway Company. On June 26,-1894, the receivers of the Union Pacific System filed a petition in the circuit court praying for instructions as to the continuance by them of the operation of the lines of railway owned by certain of the defendants named in the original bill in the Ames Case, and included in the Union Pacific System, whose earnings were represented-to be insufficient to pay their operating expenses and taxes, the Denver, Leadville & Gunnison Railway Company being one of the lines mentioned. The court directed service. of the petition to be made upon the parties interested, including the appellant and the Denver, Leadville & Gunnison Railway Company, and set the cause down for hearing. At the hearing an order of reference to the special master was made directing him, among other things, to “take and state the accounts of the said receivers with the Denver, Leadville & Gunnison Railway and ascertain the amount of the deficiency arising out of the operation of the said railway as of the 7th day of August, 1894. On such hearing, the officers of the Denver, Leadville & Gunnison Railway Company, the American
' The appellees, Clark and others, receivers, and the Union Pacific Railway Company, have filed motions to dismiss the appeal, on the ground that the Denver, Leadville & Gunnison Railway Company and Frank Trumbull, as receiver, are not made parties to the appeal, and that therefore this court does not have before it the parties whose interests are directly involved, and whose presence is necessary to the proper disposition of the questions upon which the judgment of this court is asked. The appellant contends that the Denver, Leadville & Gunnison Railway Company is not a necessary party to this appeal, for the reasons (1) that, although it was made a party to the original petition of the receivers for instructions, and was duly served with notice, it did* not answer that petition, nor appear on its return, nor before the master on any of the hearings before him, nor except to his findings, nor appear in the circuit court on the final hearing; (2) that the decree from which' the present appeal was taken was not a joint decree against the Denver, Leadville & Gunnison Railway Company and the American Loan & Trust Company; and (3) that even if the decree had been joint, the proceedings in the court below operated as a summons and severance.
In support of the first proposition our attention has been called to the case of Bank v. Perry, decided by this court February 18, 1895, .and reported in 32 U. S. App. 15, 14 C. C. A. 273, and 66 Fed. 887. That was a case where an error existed in the record, and the circuit court, upon application of one of the parties, made an order amending and correcting its record to conform to the facts. As stated by Judge Thayer in the opinion of the court in that case:
“The record was false in point of fact, and the circuit court so found, in that it recited that Lane, Kent, and Kelley had appeared and defended the suit, and that the court had actually rendered a judgment in their favor, whereas Lane and Kent had not even been served with process, and the court had not tried any issue as between the plaintiff bank and either of said three defendants, and had hot rendered a judgment in favor of either of them. The judgment actually spread of record was the act of the clerk, and in no sense ■the act of the court. Such mistakes, we think, are clearly subject to correction within any reasonable period of time.”
In that case the parties named had' not been served with process, were not before the court, no issue, so far as they were concerned, had been considered by the court, and no judgment rendered for or against them. The case was altogether a different case in its facts from the case at bar, and does not support the contention of counsel.
It is, however, insisted that the decree appealed from was not a joint decree against the Denver, Leadville & Gunnison Railway Company and the American Loan & Trust Company, and hence the Denver, Leadville & Gunnison Railway Company was not a necessary party to the appeal. The liability sought to be enforced was primarily the liability of the Denver, Leadville & Gunnison Railway Company for a deficiency arising from the operation of its road,'and by the decree this charge was made a lien against its property, prior in
The eoniention was made at (be argument: that, even though the court considered the decree a joint decree, the proceedings in the court below operated as a summons and severance, and our attention is called to the case of Trust Co. v. McClure (recently decided by this court) 49 U. S. App. 46, 24 C. C. A. 66-69, and 78 Fed. 211. We think that case is clearly distinguishable from the ease at bar. True, there was no formal notice to the railway company to appear in that: case, and lake part in the appeal; but 1lie railway company did appear, and moved to set aside the appeal which had been allowed in i t s belial f, and the court said:
“There was no formal notice to the Stuttgart and Arkansas River Railroad Company to appear in tiüs case and take part in this appeal, hut that railroad (ltd appear and moved to set aside the appeal which had been allowed on its behalf. The. order which it (1ms obtained, showing, as it does, the appearance of the railroad company in (he court below to sel aside the allowance of ils appeal, shows as conclusively its knowledge of the appeal, and its refusal to join in or proceed with it, as a formal notice and flat refusal to proceed could have done.”
We think the Denver, Leadville & Gunnison Railway Company was a necessary party to this appeal, and, as it bad no notice of its hearing, the appeal must be dismissed. This disposes of the motion to dismiss, and renders it unnecessary for us to consider or decide whether Frank Trumbull, the present receiver, was a necessary party. The appeal is dismissed.