3 Indian Terr. 104 | Ct. App. Ind. Terr. | 1899
The above statement of facts in this case is taken substantially from the appellant’s brief. The attorneys for appellee in their brief contend that the statement prepared by appellant is incomplete and unsatisfactory, . and then proceed to make what appellee contends is a full and complete statement of what has been done. The additional facts to which counsel for appellee insist upon as essential to a complete understanding of the case are substantially as follows:
The Denison & Northern Railway Company was organized in 1892 by Newton B. Childs and his associates. Childs transferred to one O. H. Brown $1,000 worth of stock, in order to make him eligible as president, and on December 31,
The case came on for trial on its merits on the 2d day of June, 1898, at which time a judgment was entered by the court. Counsel for appellee insist that the judgment entered at this time was a final judgment, and that, as no appeal was perfected by the appellant from that judgment, it is now too late for 'the errors, if any were committed, to be reviewed. The principal contention of the counsel for appellee is that the judgment entered of that date was a final judgment. In order that this
A motion for a new trial was filed on the next day, June 3, 1898, and on the next day — June 4th — the court overruled the motion; to which judgment of the court the Denison & Northern Eailway Company at the time duly excepted, and on the same day the following order was entered: “On this, the 4th day of June, 1898, on motion of defendant, the Denison & Northern Eailway Company, in open court made, the said defendant, the Denison & Northern Eailway Company, is allowed and granted an appeal from the judg
Counsel for appellee insist that the decree rendered June 2, 1898, was a final one .in so far as the establishment of a lien against the assets of the Denison & Northern Railway Company is concerned; that it was treated by the attorneys of the railway company as final; that they filed a motion for a new trial, which was overruled, and they excepted, and that they asked for an appeal, which was granted. Counsel for appellee then submit the following statement, which is found in their brief, pages 7 and 8:' “It is not unfair to them for us to insist that this was a final decree, because it was drawn by them, and endorsed in the handwriting of one, of them, .‘Final judgment.’ We would not refer to this fact but for the circumstance that on page 61 of the printed record the order of October 29, 1898, is called a ‘final judgment,’ while the decree of June 2, 1898, is not so styled; the printed record having been prepared under the supervision of counsel for the railway company. ” At the time of the rendition of the judgment of June 2, 1898,
Much controversy has arisen in reference to. those decrees which, while settling the general equities of the case, leave something for future action or determination, and the true rule seems to be that, if that which remains to be done or decided will require the action or consideration of the court before the rights involved in the decree can be fully and finally disposed of, the decree is interlocutory; but it is none the less final if, after settling the equities, it leaves a necessity for some future action or direction of the
This brings us to the consideration of the appellant’s assignments of error, which are 20 in number. The first assignment of error is: “The court erred in overruling this, defendant’s demurrer to plaintiff’s complaint for reasons stated in said demurrer, and for the reason that said com
We have been thus specific in stating the substance of this petition for the reason that it furnishes the basis of the subsequent action of the court thereon, and for the reason that it shows that such subsequent action was at the instance of the Denison & Northern Railway Company, through its president, as well as at the instance of the receiver. This petition was filed, as stated, on the 21st day of February, 1896, and on the 2nd day of March thereafter the court, the Honorable C. B. Kilgore, judge presiding, entered of record an order, the substance of which we will give. This order is doubtless responsible for much of the litigation and contention which has followed. The order begins by stating that Moran Scott, the receiver, comes and represents to the court that he has received an application from the Mineral Belt Construction Company to enter into contract, with the approval of the court, with the receiver for the purpose of building and equipping the Denison & Northern Railroad upon conditions above stated in the petition to the court, obligating itself to build the road as provided in said petition, and to give bond in the sum of $100,000, conditioned upon the faithful compliance with the contract, and that the construction company would ‘ ‘take in payment therefor the receiver’s certificates heretofore ordered to be issued by said receiver to the amount of eleven thousand
This last-named order of April 20, 1896, was entered of record in the United States court at Ardmore on the20th day of April, 1896. Said order of April 20th, 1896, provided that: “Said debentures or certificates of indebtedness, when issued, are hereby declared to be a lien against said Denison & Northern Railway Company, for principal and interest thereof, upon all the rights, franchises, equipment, and appurtenances of any and every kind and character appertaining and belonging to the said Denison & Northern Railway Company, with the right and priority over all other claims except those of complainants in this cause. Said debentures or certificates shall be made to fall due and become payable by said Denison & Northern Railway Company January 1, 1897, with interest from date at the rate of six (6) per centum per annum; and, in the event of the failure of the Denison & Northern Railway Company to take up the said debentures or certificates, or to pay the principal or interest thereof when they shall have become due, any holder of one or more of said debentures or certificates, in behalf of himself and all other holders of said debentures or certificates, may bring suit thereon to compel the payment thereof, and in default of payment to enforce the lien against said Denison & Northern Railway Company. The order of April 20, 1896, modified in several material respects the order of March. 2, 1896, and those modifications were made at the instance of J. C. Beeks, an attorney of the Denison & Northern Railway Company. Testimony shows that Mr. Beeks prepared the order of April 20, 1896, and at the bottom of the order signed by Judge Kilgore, and as it appears on page 341 of the record, are the words, ‘ ‘O. K. C. B. Kendrick, J. C. Beeks.” Mr. Kendricks was theattor
As heretofore stated, the Crockett suit was dismissed by the court, Honorable Hosea Townsend being the judge then presiding, having been appointed to succeed the Honorable C. B. Kilgore, deceased. The order disposing of the Crockett suit was based upon a plea to the jurisdiction of the court, filed by William J. Scott, counsel for the Denison & Northern Railway Company, on the “5th of February, 1898, as of September 4, 1896.” There is no explanation in the record of the fact that this plea was to be filed as of a previous date to its actual filing. It was stated in this plea that the Denison & Northern Railway Company appeared only for the purpose of submitting that plea, which was based upon the alleged
The appellant’s third assignment of error is as follows: “The court erred in holding that to the extent improvements have been made upon the line of this defendant’s railroad, that those who did work upon and furnished material and supplies which went into the construction of such improvements had and have a lien against the property of this defendant to the extent of the present cash value of such improvements to this defendant for railroad purposes; the record and proof having shown that the plaintiffs herein, nor any other persons, ever attempted to assert or fix a lien upon the property of this defendant for work done or material or supplies furnished this defendant under written or verbal contract, according to chapter 96 of Mansfield’s Digest of the Statutes of Arkansas, adopted and put in force in the Indian Territory by act of congress.” Appellant’s fourth assignment of error involves the same legal
The seventeenth and eighteenth assignments of error relate to the admissibility of evidence. The court did not err in admitting the testimony, or, if error, it was not prejudicial to the defendant railway company.
Appellant’s nineteenth and twentieth assignments of error are in reference to the overruling of defendant’s motions for a new trial of June 3 and October 29, 1898. There was no error in overruling these motions for a new trial, in view of the position this court holds in regard to the other assignments of error. The contract entered into between the Denison & Northern Railway Company and Bracy, Chapman & Lampson was entered into on the 18th day of April, 1898, and at a meeting of the board of directors of the railway company held on the 26th day of April thereafter a resolution was adopted ratifying and approving said contract. It is nowhere contended that the railway company is not responsible for the making of this contract. It provided, ■ in short, that the contractors should build 71 miles of road, and should receive $15,000 a mile in the first mortgage 5 percent. gold coupon bonds of said railway company, and also capital stock to the amount of 51 per centum of the stock issued. These contractors allege that they employed a corps of engineers, and caused considerable work to be done on the proposed line of said railroad, but, on account of the depressed condition of the finances of the country, said firm
This court has given this case and all the proceedings of the Crockett case which appear in the record a very careful consideration. In reaching the conclusions stated above no injustice has been done the Denison & Northern Railway Company. The value of the betterments placed upon its railroad was estimated by three persons selected by the