66 F. 378 | 7th Cir. | 1895
In a suit brought by the Youngstown Bridge Company in the court below, the appellants on the 17th day of October, 1893, were appointed receivers of the Kentucky & Indiana Bridge Company (hereinafter called the “Bridge Company”), a corporation created and organized under the laws of the state of Indiana, and the owner of a bridge spanning the Ohio river between the city of Louisville, in the state of Kentucky, and the city of New Albany, in the state of Indiana. In that suit the city of New Albany, on the 28th day of January, 1894, by leave of the court, hied its intervening petition, representing that for many years prior to the receivership the bridge company was the owner and in possession of a large amount of real and personal property situated within the limits of the city of New Albany, and subject to assessment for taxation by the city; that during the years 1889 to 1893, both inclusive, certain taxes were lawfully assessed by the city against the property of the bridge company, part of which remained unpaid, and were by law a lien upon the real estate and personal property of the bridge company then in
It is alleged in error that the court erred in overruling the exceptions to the report, and in refusing to recommit the cause for further hearing. The objection for defect of proper parties may be taken advantage of either by demurrer, plea, answer, or at the hearing. If the defect be apparent upon the face of the bill, it should be called to the attention of the court by demurrer; otherwise by plea or answer. Such an objection is not usually available for the first time at the hearing, unless there is wanting an indispensable party, without whose presence a determination of the controversy cannot he had. The suggestion that the New Albany Railway Company' and tlie New Albany Belt & Terminal Railroad Company are indispensable parties to the intervening petition cannot avail upon this appeal, for the reason that, if otherwise they are necessary parties to the petition, the claims of the respondent with respect to taxes laid upon their property were not determined by the decree now under review, but were reserved for further hearing. The other parties, whose presence is suggested as essential, are parties to tin* original bill, as holding incumbrances upon the property subordinate to the lien of the complainant. They were in court in the suit in which the receivers were appointed, and were hound to take notice of the intervening petition of the city tiled in that suit, and of the proceedings thereunder. It was not necessary that they should he made formal parties to the petition. Being parties to the suit, they were in fact parties to the intervening petition. The receivers, in respect to the conservation of this property, represent all parties to the original hill. It was their duty to preserve the estate, and thereto to pay' the taxes thereon. If the taxes were illegally laid, jt was their duty, representing all in interest, to contest payment. If parties to the original bill desired to take active pari, in such contest, they had the right to he heard, and such right, if demanded, would doubtless have been accorded to them. They did not so ask, although, being parties to the suit, they were obligated to take notice of the proceedings. They are not here objecting that they were not well represented by the receivers. The latter cannot for the first time, after full hearing upon the merits before the. master, object that those they represented should he formally notified of the petition.
A rehearing for newly-discovered evidence rests in the sound discretion of the court. The application should disclose the new