Farmers' State Bank of Texahoma v. Thompson

261 F. 166 | 5th Cir. | 1919

FOSTER, District Judge.

[1] These two appeals arise from the same cause of action and were argued at one and the same time. The first-named case presents an appeal from a decree dismissing a bill and an intervention, by which the plaintiff and intervener sought to impress 1he proceeds of a certain life insurance policy on the life of appellee’s husband with a trust in their favor as creditors. It is unnecessary to consider the merits of this case., as at the outset we are met by a motion to dismiss the appeal because not timely perfected.

The decree was entered on June 14, 1918. The petition for appeal, the assignments of error, and the bond were not filed until December 16, 1918. The appeal was allowed and the order signed on December 16, 1918. The matter was not presented to any judge before that date. Appellants had 6 months in which to perfect their appeal. Act March 3, 1891, c. 517, § 11, 26 Stat. 829. It is apparent the appeal was not prosecuted in time.

¡2, 3] Appellants seek to excuse the delay on the grounds that Judge Meek, judge of the District Court for the Northern District of Texas, was ill and could not he reached to present the papers, and that they were mailed to Circuit Judge Batts, who was designated to hold the District Court in the Northern District of Texas, in time, had the mail been promptly delivered.

As to this it is sufficient to say that the District Court is always open for the filing of pleadings, and the appeal could have been allowed by Judge Ervin, who tried the case under proper designation, or by any Circuit Judge. Judicial Code, § 132 (Act March 3, 1911, c. 233, 36 Slat. 1134 [Comp. St. § 1124]). Furthermore, delay in the mail is no excuse. The appeal will be dismissed, at appellants’ cost.

[4, S] The second case is an appeal from an order appointing a receiver. It is evident that the appeal presents now only a moot question, as the receivership naturally fell with the dismissal of the bill. It is earnestly insisted by appellant, however, that the order was unwarranted, and should be reversed, notwithstanding the action of the court on the appeal in the main case.

It appears that the receiver was appointed by the court merely to take possession of the fund claimed by plaintiffs. An ample bond was exacted. The application for a receiver was tried on bill and answer. The bill subslantially alleged that the defendant had removed the fund out of the jurisdiction of the court and would dissipate it. The essential allegations of the bill were verified by the affidavits of two persons. The answer filed in the case was verified by the affidavit of defendant. It admits the defendant had used part of the fund for her own use and would continue to so use it. At the hearing defendant produced witnesses and offered to go into the trial of the merits of the case, which the court declined to do.

On the facts presented we cannot say there was any abuse of discretion on the part of the District Court. The appointment of the receiver merely preserved Ihe status quo, which was right and proper, and the defendant was amply protected by bond. As the controversy is at an end the appeal in this case will also he dismissed, without costs to either party. Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293; Bucks Stove & Range Co. v. Am. Federation of Labor, 219 U. S. 581, 31 Sup. Ct. 472, 55 L. Ed. 345.

Appeals dismissed.