Central Trust Co. v. East Tennessee, V. & G. Ry. Co., 69 F. 658

Central Trust Co. v. East Tennessee, V. & G. Ry. Co.

69 F. 658 | U.S. Circuit Court for the Northern District of Georgia | 1895

NEWMAN, District Judge.

As to the contention that this court has no jurisdiction to hear and determine the questions raised as *666to the priority of liens of Georgia judgment creditors over the bonds secured by the mortgage, this may be said first: The decision made by Judge Pardee, in which I concurred, in Re Intervening Petition of Miller, 30 Fed. 895, was made in a case somewhat different from this, as to the manner in which two bills for foreclosure and for receiver were originally brought. The bill in this case is more in the nature of an original bill, although the primary litigation has been in Tennessee. It is doubtful if it can be considered ancillary only, as the proceeding here clearly was in the former case. But, be this as it may, the extract from the decree of foreclosure of April á, 1894, and of the decree of April 9, 1894, and from the order passed here confirming the sale, as shown in the foregoing report, clearly distinguish the question, as now presented from that passed on by Judge Pardee and myself in the Miller Case, supra. Under the practice which has grown up in this receivership case of the East Tennessee Railway, and similar cases, of late years, it is doubtful if the rule announced in the Miller Case can be adhered to, and a proper and satisfactory disposition made of the numerous intervening petitions which come into these cases, raising questions similar to the one now presented. The rights of parties under the local law may be better ascertained in their respective jurisdictions than they would be if sent, as a whole, to the court of primary jurisdiction. I would not undertake to question the correctness of the rule in the Miller Case, without concurrence of the circuit judge who delivered the opinion; but, in my judgment, it is not applicable here, in view of the direction which has been given this case, and of the orders and reservations contained in the record.

As to the exceptions of interveners who claim priority over the mortgage as to the fund arising from this sale, by virtue of certain statutes of the state of Tennessee, the very able report of the special master is so full, clear, and so entirely satisfactory, that nothing need be said on that question. I have no doubt as to the correctness of the conclusion arrived at by the special master, and set out in his report. Further discussion of the matter is unnecessary, and the exception will be overruled, and the report of the special master confirmed.