King v. Hiawatha Silk Mills, Inc.

296 F. 907 | 2d Cir. | 1924

MAYER, Circuit Judge

(after stating the facts as above). If the court had power, the reduction of the allowances was within its discretion. Ordinarily an order making allowances is interlocutory, but in this case the order of July 7, 1923, surcharged the receivers as on a final accounting, and ordered that they be not discharged, nor the bonds filed by. them canceled, until after repayment-of the surcharged amount. Thus the order or decree of July 7, 1923, is a final and appealable order or decree. The order of March 1, 1922, provided that Dynch should receive $2,500 “on account of services rendered to date,” and that the attorneys should receive $3,000 “on account of services rendered by them to date.” Such an order is interlocutory and not appealable, but may be brought up for review under the decree, which finally fixes the compensation of receivers and their attorneys.

The decree dated April 30, 1923, and entered May 1, 1923, was a final decree. After making the allowances, that decree provided that:

“Upon tbe filing of a proper receipt, duly signed by the said receivers of tbe District Court for the Middle District of Pennsylvania, * * * ” the receivers “be discharged as receivers in this district and the bond given by them as such receivers canceled.”

The order of June 14, 1923, which provided for the discharge of the ancillary receivers and the cancellation of their bonds, merely carried into effect the decree dated April 30, 1923. As' the decree of April 30 was a final decree, the District Court had power to vacate or modify that decree. Rule 5 of the rules duly adopted by the District Court for the Southern District of New York provides as follows:

“For the purpose of taking any action which must be taken within the term of the court at which final judgment or decree is entered, each term of court is extended for ninety days from the date of entry of the final judgment or decree.”

The decree of July 7, 1923, modifying the decree of April 30, 1923, was within the period provided for by rule 5, as such decree was entered on May 1, 1923. From the foregoing it is plain that the court had full power to make the decree of July 7, 1923, and to modify the allowances provided for in the two previous order's; i. e., dated March 1, 1922, and April 30, 1923, respectively.

Other questions may arise, where receivers under decree of the court have sold property under certain provisions in the decree of sale, as, for instance, in Farmers’ Loan & Trust Co. v. Central R. R. of Iowa (C. C.) 7 Fed. 537; but such questions are not-before us in this case. Here, during the life of the term of court, an order or decree was made which the court had power to make, and, the discharge of the ancillary receivers and the cancellation of their bonds could not become effective so long as the District Court had the power to vacate or modify the order granting discharge and consequent cancellation of the bonds.

The propriety of the order of intervention in the ancillary jurisdiction in respect of matters there dealt with is well settled. Smith, v. Lynch (C. C. A.) 288 Fed. 552; Brooks v. Smith (C. C. A.) 290 Fed. 33.

Decree affirmed, with costs.