62 F. 950 | U.S. Circuit Court for the Northern District of Georgia | 1894
(after stating the facts as above). From the above statement of facts, it will bo seen that the Chattanooga, Rome & Columbus Railroad has been in the continuous and uninterrupted possession and has been controlled and operated by receivers of the federal court since (.lie appointment of the re-ceivin' in the case of Rowena M. Clark against the Central Railroad & Banking Company, March 3, 1892. The suit; of the Central Trust; Company against, the Chattanooga, Rome & Columbus Railroad, under which Jones holds as receiver, was brought to foreclose» a mortgage securing $2,090,000 of bonds. It is not denied that the lien of this mortgage is superior to that of the judgment creditors who bring the proceeding in the state court. Even if the bill of the Central Trust; Company against the Chattanooga, Rome & Columbus Railroad, under which Join's holds possession of the road, could be treated as a separate and distinct proceeding, and unconnected, so far as the receivership is concerned, with the former proceeding in ihe southern district of Georgia and in the middle
The facts here make no such case as was made in the litigation over the Atlanta & Charlotte Air-Line Railroad, in which conflicting opinions as to the duty of the courts as to possession of receivers were expressed by Justice Bradley and Circuit Judge Woods, in the case of Wilmer v. Railroad Co., 2 Woods, 409, Fed. Cas. No. 17, 775, or in the Atlanta & Florida Railroad Case, in which a decision was made by the judge of the state court (not reported), and afterwards heard by Judge Speer, of the southern district, in the case of East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co., 49 Fed. 608. In both of these cases there was something of a race for the possession of the property, and the rule may be derived from these cases, as well as from all the other authorities on the subject, that the court which has the actual physical possession of the property will determine the justice and right of its possession, and any other court appointing a receiver, even prior to the appointment by the court having possession, will direct that an application be made to the court in possession to determine the question as to whether its receiver is rightfully entitled to possession. Under the facts stated as existing in the case at bar, a very different question is presented. The state court appointed its receiver, as has been stated, with the knowledge of the fact that the property was in the hands of the federal court, and notwithstanding that fact; and it did not direct its receiver to take possession, but, on the contrary, the effect of the order was to' direct the receiver not to take possession. Such consideration having been shown by that court for the possession of the federal court, it is our duty to show equal consideration here.
But it is contended that the possession of the receivers in the Central Railroad litigation of the Chattanooga, Rome & Columbus Railroad was not rightful, in that the property did not properly go into the hands of the receivers there appointed; and the case of Central Railroad & Banking Co. v. Farmers’ Loan & Trust Co., 56 Fed. 357, is cited as authority. Without going into the question of what the effect of that decision was, and as to how far it is applicable here, it is sufficient to say that the fact is not questioned that the road did go into the actual possession and control of the receivers appointed in that litigation, and it is that fact which is effective here. The question here is simply one of possession. There is no contention whatever that Jones was not legally appointed under the bill of the Central Trust Company against the Chattanooga, Rome & Columbus Railroad; that is, that in itself that appointment was proper and rightful, and whether or not the road should have gone into the hands of the receivers in the hill against
It is the desire of this court to show the utmost consideration for the courts of the state, hut it is not perceived how, in any view of the matter, a better right is shown in the receiver of the state court to have possession of the property in controversy than the officer of this court who is now in actual possession. The order prayed for, therefore, requiring the receiver of this court to turn over to the receiver of the state court the possession of the Chattanooga, Rome & Columbus Railroad, must be denied.