State v. Jacksonville, Pensacola & Mobile Railroad

15 Fla. 201 | Fla. | 1875

Lead Opinion

WESTCOTT, J.,

delivered the opinion of the court.

Appeals are prosecutecl in this case by the Florida Central Railroad Company, Daniel P. Holland, Edwin M. L’Engle, Francis F. L’Engle, F. B. Papy, George R. Foster and Theodore Hartridge.

The first question which arises under the errors assigned is, was the Judge of the Fourth Circuit qualified to hear this case %

It is insisted by defendant, Daniel P. Holland, that the Judge of the Fourth Circuit has been of counsel in this cause.

It appears from the record that Judge Archibald, before his appointment as Judge, represented the receiver in an application' by the Atlantic and Gulf Railroad' Company for an order for the payment of moneys due it by the receiver. This company owned a line of railway connecting with the road in the possession of the receiver, and it was claimed that he had moneys due it for through tickets and freights.

This was a matter independent of the main suit,’ in the consideration, of which it was not necessary that the attorney should'have formed any opinion, or to have investigated the equities of this case, or the propriety of the appointment of the receiver, or any question between the parties to this controversy, which he afterward decided as Judge.

We think there is nothing in the objection, and the challenge must fail.

We first consider the case* of the Florida .Central Railroad Company.

This company takes an appeal, claiming to be a party to the suit, with the right to appeal and to be heard. On the other hand, the respondents insist that it is no party, that its position is that of a person claiming title paramount, that it was not in possession when the receiver was appointed, and that it should intervene by petition to be examined pro mteressee suo. To- the original complaint the Florida Oentral Railroad Company was no-party. This complaint alleged that the possession of the line of road from Lake City to Jacksonville was then in Chase .and Flagg, trustees, who held such possession under a deed of the Jacksonville, Pensacola and Mobile Railroad Company, in which it claimed ownership of the entire line. This deed purported to convey to these parties the entire line of road for a term of two years.

If this suit had proceeded under this original complaint, it may be true, that, according to the rules of equity practice prevailing before the code, the Florida Central Railroad Company, if it claimed title paramount to the Jacksonville, Pensacola and Mobile Railroad Company, the lessor in the deed mentioned, as well as against the lessees in possession, should have intervened by petition.

Put however this may have been under the original complaint we need not determine, as the same case is not presented by the amended and supplemental complaint, and the subsequent proceedings in the case. That complaint sets up, by way of supplement, that E. M. L’Engle, claiming to be a stockholder in the Jacksonville, Pensacola and Mobile Company, and in the Florida Central Company, as two distinct corporations, has filed a bill against the Jacksonville, Pensacola and Mobile Company and others, claiming rights to the exclusion of the plaintiffs in this cause, and that the receiver heretofore- appointed in the case has been, on the application of the said L’Engle, and by order of this court, displaced as receiver of that part of the Jacksonville, Pensacola and Mobile Railroad, lying between Lake City, Florida, and Jacksonville, Florida, described in his bill as the Florida Central Railroad, and another receiver appointed in his place. From the-report of receiver Greeley, filed on the 7th of June, it appears that at the time the order of June 22d was made, the possession of what it claimed to be the Florida Central Railroad was with the agents and' employees of that company under receiver Baker, he being one of the three receivers of the “ earnings ” of the entire line of road. This supplemental complaint also sets up that Houston and others, assuming to be the owners of stock, have held meetings of the stockholders of the said Florida Central Railroad Company, claiming that-it was no part of the said Jacksonville, Pensacola and Mobile Railroad Company, and has voted said stock, although said stock did not belong to said Houston, but was the property of M. S. Littlefield.

It alleged, also, that the State of Florida, in exchanging securities, required that one million of the bonds should be executed in the name and under the seal of the Florida CenRailroad Company, and that all the necessary steps to constitute a pro forma consolidation between the Jacksonville, Pensacola and Mobile Company and the said Florida Central Company, as described by its original charter and enaabling act, had not been taken.

One of the prayers of the amended complaint was, “ that for the purpose of the decree hereinafter prayed, the said the Florida Central Railroad Company be made a party defendant hereto.” We thus see that the plaintiffs in this action made the Florida Central Railroad Company a party to the amended complaint; that they set up the fact that such a body claimed to be in existence as a separate corporation ; that persons claiming to be stockholders in such corporation Avere asserting that they Avere the holders of a subsisting stock interest-; that these stockholders had, in 'this court, caused the original receiver appointed in this case to be displaced and a new one appointed in the stockholders’ suit. On the 14th day of August, A. F>. 1872, the Florida Central Railroad Company,- upo'n petition and after notice, was made a party defendant to the suit, the order being as follows : “ On reading and filing the petition of the Florida Central Railroad Company, a corporation in this State, under and by virtue of the laws thereof, and proof of due service of the notice of this motion ; now, on motion of Peeler and Raney, attorneys for said Florida Central Railroad Company, Charles P. Cooper, acting attorney-gen eral, appearing for the plaintiffs, it is ordered that the said Florida Central Railroad Company be made a party defendant herein, and the summons and complaint be amended accordingly, and that the cause proceed in like manner as if the said Florida Central Railroad Company had originally been made a party defendant herein.” On the 3d of September, A. D. 1872, this defendant filed its answer to the amended complaint. In the final decree from which this appeal is prosecuted it is considered by the court, and is thereby adjudged, that the Florida Central Railroad Company shall be held and deemed to be consolidated with the Jacksonville, Pensacola and'Mobile Railroad Company, thereby determining the principal issue raised by the pleadings of this defendant, and which, according to the pleadings, was' a very important question in the case. Under the provisions of the code, an amended pleading takes the place of and supersedes the original, (4 Howard, 174 ; 12 How., 521; 5 Duer, 656,) and the amendment of the complaint relates back to the commencement of the action. This is true of the amended complaint, except so far as it alleges supplemental matter, and that of course cannot be a substitute for the original. Under the provisions of the code, “ any person may be made defendant who 'lias or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.” In ■ this cause, the Trustees of the Internal Improvement Fund seek to subject the line of railway extending from Lake City ■to Jacksonville to its claims against the Jacksonville, Pensacola and Mobile Eailroad Company, one of the grounds being that such line of railway is the property of said company, while in their complaint they set up that there are persons claiming to be owners of such road other than their debtor, and that there is a corporation alleged to be in existence as the owner of said line of railway other than the Jacksonville, Pensacola and Mobile Eailroad Company. It appears from the complaint, that consolidation was questioned by persons claiming to be stockholders and a body claiming to be a corporation. They also claim as against this alleged pretended organization, that its incorporators have failed to comply with the conditions of sale attending their purchase of said line of railway. For the purpose of contesting these and the other questions involved in this controversy, the plaintiff named the Florida Central BaiL road Company a party, and, by a subsequent order of the court, it was made a party upon its petition after notice. It ■subsequently filed its answer, and it is as much bound by the final judgment in this case as any party can be. It is therefore in a condition to appeal from the orders and judgment in this case, and to raise any question which any party appellant can raise under the rules controlling the subject.

As to the appellant, Daniel P. Holland, it is only necessary to say that he is expressly named a party defendant in the supplemental complaint of plaintiffs, filed March 25th, 1874; that he was then in possession of the line of railway extending from Lake City to Quincy, claiming to hold it by a title superior to that of each of the plaintiffs in this suit that this property, thus in his possession, was the subject matter of this litigation, and that upon the day of filing the supplemental complaint, the plaintiff, the Trustees of the-Internal Improvement Eund, applied for and obtained an injunction against him as defendant, Daniel P. Holland.. The other appellants are likewise parties to the supplemental bill. Some of these parties had not been served with process before .entering their appeal. This, however, makes no difference, as they can appear voluntarily, and take siich action, as a party served with process can take. (Danl. Chy. Prac., 560-561; 8 Paige, 45; 1 Smith Chy. Prac. 158; 2 Mad. Chy., 206.) These parties are before this court, therefore, as appellants, entitled to be heard in respect to every question which they can properly raise upon such an appeal as they have taken.

The appeal in this case is taken from a final decree, and the rule announced by this court repeatedly is that such an appeal brings up the whole merits of the cause, and the previous proceedings generally. (2 Fla., 301-2; 4 Fla., 363-4; 9 Fla., 50 ; 10 Ohio, (State,) 511 ; 9 Win., 495 ; 17 Mrld., 231; 17 John., 559 ; 1 John Cas., 498.) Such, too, is likewise the- rule of the code.

We come now to the consideration of the case of the Trastees of the Internal Improvement Fund and the Florida Central Railroad Company.

Under the provisions of the act of January 6, 1855, entitled “ An act to provide for and encourage a liberal system of internal improvements in this State,” a line of railway from Jacksonville to the waters of the Pensacola Bay, with an extension to St. Marks, was designated as a proper improvement to be aided from the Internal Improvement Eund, in the manner provided in said act-. Two companies controlling a part each of that line, the Pensacola and Georgia Railroad Company and the Florida, Atlantic and Gulf Central Railroad Company, having accepted the provisions ■of that act, issued bonds under the third section thereof. This section provided that “ all bonds issued under the provisions of this act shall be a first lien or mortgage on the road-bed, iron, equipments, work-shops, depots and franchise; .and upon the failure upon the part of any railroad company accepting the provisions of this act to provide the interest, ■as herein provided, on the bonds issued by said company, .and the sum of one per cent, per annum as a sinking fund, it .•shall be the duty of the trustees, after the expiration of thirty days from said default or refusal, to take possession of said railroad and all its property of every kind, and advertise the ■same for sale at public auction to the highest bidder, either for cash or additional approved security, as they may think most advantageous for the interest of the Internal Improvement Fund and the bondholders. The proceeds arising from ■.such sale shall be applied by said trustees 'to the purchase .and cancelling of the outstanding bonds issued by said defaulting company, or incorporated with the sinking fund; Provided that, in making such sale, it shall be conditioned that the purchasers shall be bound to continue the payment •of one-half of one per cent semi-annually to the sinking fund, until all the outstanding bonds are discharged, under •the penalty of an annulment of the contract of purchase and the forfeiture of the purchase money paid in.”

The Florida, Atlantic and Gulf Central Eailroad Company, owning the line of road from Lake City to Jacksonville, having failed to comply with the requirements of the act as to the interest and sinking fund upon its bonds, was ■sold by the trustees on the fourth of March, A. D. 1868, William E. Jackson and his associates becoming the purchasers. The complaint alleges that there were outstanding bonds, and that such purchasers- have failed to continue the payment of the sinking fund, as required by law. William E. Jackson and his associates, after their purchase, were made a body politic and corporate, to operate said line of -road, under the name of the Florida Central Eailroad Company. This- company, as to this allegation of the complaint, answers that the road was purchased by William E. Jackson and his associates for the sum .of one hundred and eleven thousand dollars; that this amount was paid ; that nearly all of the bonds of the Florida, Atlantic and Gulf Central Railroad Company were paid in to the trustees by the purchasers (being rated at about twenty cents on the one hundred) and cancelled, leaving outstanding, upon' which they were required to pay a sinking fund, only about one hundred and twenty thousand dollars of bonds.

That Edward Houston was appointed the agent of the trustees to take up the outstanding bonds, and that said agent has, from time to time, as fast as he could obtain information of their whereabouts, taken up said bonds, and that there is now outstanding only about twenty thousand dollars of these-bonds. That the sinking fund due by this defendant was paid up to the fourth of March, A. D. 1870, and that said Houston, the said agent of the trustees, had in his hands, on the 16th of May, A. D. 1872, to the credit of this defendant, on account of said sinking fund, six hundred and thirty dollars, and that there was nothing due by this defendant, on account of said sinking fund, at the time of filing said complaint. So far, therefore, as the matter of the non-payment of this sinking fund is concerned, the record before the court below presented an issue of fact, and such was the state of the record at the 1/mne of the final decree, as no testimony was ever talcen.

The trustees, in addition to this, set up another claim in their complaints, amended and supplemental against this line of road, upon the basis of the consolidation and amalgamation of the Florida Central Railroad Company with the Jacksonville, Pensacola and'Mobile Railroad Company. The trustees allege that the Tallahassee Railroad Company and the Jacksonville, Pensacola and Mobile Railroad Company were indebted to them for a balance of unpaid purchase money, due on account of the sale of the line of road extending from Tallahassee to St. Marks, and from Lake City to Quincy; that the line of road from Quincy to Lake City had been constructed and owned by the Pensacola and Georgia Railroad Company, and the road from Tallahassee to St. Marks had been constructed by the Tallahassee Railroad Company. .

That the two last named companies had accepted the provisions of the Internal Improvement Act, and had issued first mortgage bonds on their respective lines of road. That, failing to pay the interest and sinking fund, as required by law, the roads-were seized and sold. That there is a large balance of the purchase money for these roads due and unpaid by the purchasers thereof, and that there have been no payments made by them on account of the sinking fund. That, subsequent to this sale, thfe Jacksonville, Pensacola and Mobile Railroad Company was incorporated, with power to complete, equip and maintain ■ a connection by railway between Jacksonville and Pensacola; and that, under said act, the several corporations owning any part of this line might be consolidated by a majority vote of the stock ; and that the companies owning the lines of railway from Quincy to Lake City, and from Tallahassee to St. Marks, and from Lake City to Jacksonville, have been consolidated and amalgamated with the Jacksonville, Pensacola and Mobile Railroad Company, whose owners and incorporators, together with the 'said line of railway, are liable for the balance of the unpaid purchase money due the trustees, and the sinking fund due on the outstanding bonds. The last supplemental complaint, filed after the answer of the Florida Central Railroad Company, sets up other and additional facts as to the matter of consolidation, but its effect cannot be more than to make an issue of fact.

The claims of the trustees arising out of the'balance due on the purchase of. the roads from Quincy to Lake City and from Tallahassee to St. Marks, can - exist against the road from Lake City to Jacksonville only upon the hypothesis that it is the property of their debtor, the Jacksonville, Pensacola and Mobile Eailroad Company, or through some relation of the Jacksonville, Pensacola and Mobile Eailroad Company to said property, and not from anything arising from the bonds issued under the act of January 6, 1855, by other Gorivpcmies.

It is too plain for argument that bonds issued by the Pensacola and Georgia Eailroad Company, and the Tallahassee Eailroad Company, are not in any way a lien on the road from Lake City to Jacksonville. This claim of the trustees, it is thus seen, is based upon the alleged amalgamation of the Florida Central Company with the Jacksonville, Pensacola and Mobile Eailroad Company. Without narrating at length the facts stated in the answer of the Florida Central Eailroad Company, it is enough to say that its effect is to put in issue this fact of consolidation, which is the whole foundation of the claim of the trustees to subject it to sale, to pay the balance of the purchase money due on the sale of the other lines of road. So far as the trustees are concern ed in their •relations to the alleged Florida Central Eailroad Company, it is thus apparent that at the time the final decree or judgment was rendered in this case, all the facts which constituted the basis of their claim against that alleged company, its incorporators, or the line of road which it claimed to own, were at issue under the pleadings in the case.

With the pleadings in this condition, and without notice or opportunity for hearing, the final decree against the Florida Central Eailroad Company was entered, and for' these reasons it must be reversed as to the -trustees.

In behalf of the' State nothing is decreed, except that the Florida Central Eailroad Company is consolidated with the Jacksonville, Pensacola and Mobile Eailroad Company, and as that fact was in issue between the State and this alleged company under the pleadings, and the judgment was rendered without notice, evidence, or an opportunity for hearing, and without default, in the same manner as théjudgment was rendered in behalf of the trustees, it must likewise -be reversed as to that alleged company. It was entirely inconsistent with and in violation of.the simplest principles prevailing in courts accustomed to the due and orderly administration of justice for the Circuit Court of Duval county, thus, in the face of these issues, without testimony, and without notice and without default in pleading, to pass a final judgment affecting the rights óf a party which was, by its own order and after due notice, brought into the case. These facts are embraced in the issue made by the pleadings. We must, as the court below should have done, leave them to be determined in the usual method, and recognize the impropriety of any attempt on our part to determine them as the case is now presented here.

The next case we consider is that of defendant Daniel P. Holland and the trustees.

On the 24th of March, A. D. 1874, the plaintiffs filed a supplemental complaint, in which Daniel P. Holland was named a party defendant, reciting that since the filing of the amended, complaint, and about the 2d day of December, A. D. 1872, the said Holland recovered a judgment against the Jacksonville, Pensacola and Mobile Bailroad Company, in the Circuit Court of the United States for the Northern District of Florida,, for the sum of about sixty thousand dollars, caused execution to be issued thereon, and levied the same upon the equity of redemption of the railroad and appurtenances and property of the Jacksonville, Pensacola and Mobile Bailroad Company west of Lake City, and that this property was sold on the first Monday of May, A. D. 1873, the said Holland becoming the purchaser, crediting the amount of the bid on the execution. That soon thereafter he acquired the possession of the railroad of the Jacksonville, Pensacola and Mobile Bailroad Company, and has ever since retained possession thereof, receiving the rents and tolls therefrom; that such line of roads and property had been taken possession of by J. O. Greeley, the receiver heretofore appointed in this canse ; that -said Greeley had never been discharged, and that such act of the said Holland was in contempt of this court and its orders.

That about the last of May, 1872, Francis B. Papy, an employee of said Receiver, accepted the appointment of Receiver by the Judge of the Second Judicial. Circuit of Florida, made in a suit instituted by holders of first mortgage bonds of the Pensacola and Georgia Railroad Company against the Jacksonville, Pensacola and Mobile Railroad Company and the Trustees of the Internal Improvement Fund.

That in July, 1872, other first mortgage bondholders brought, a suit in said United States Court against the Jack, sonville, Pensacola and Mobile Railroad Company and the said trustees, and on the 19th of December the said Jacksonville, Pensacola and Mobile Railroad Company withdrawing its answer, and the suit being dismissed as to the trustees, who plead to the jurisdiction, a decree pro eonfesso was taken against the. Jacksonville, Pensacola and Mobile Railroad Company ; that these proceedings in said United States Court are more fully set forth in a bill in equity, brought by the State of Florida against said first mortgage bondholders, Daniel P. Holland and others, in the Supreme Court of the United States, and therein now pending, a true copy whereof, and of the writ of injunction therein granted, is hereto1 attached', and prayed to be taken as a part of this supplemental complaint, as fully, as if specially set forth herein. That the complainants, who had so obtained the decree pro eonfesso against the said company, entered into an agreement with said company, whereby complainants in said decree 'arid 'in said' suit, wherein Papy was appointed Receiver, agreed to dismiss the last mentioned suit, to discharge said Papy, and allow said company time to pay the amount-of said decree ; that afterward, by concert of action between the complainants in the two suits with the marshal of said district, said Papy was discharged as Receiver, and the suit wherein he was appointed, dismissed, and said marshal, contemporaneously with said Papy’s discharge, levied the said decree of the 19th of December on said property' west of Lake City, and advertised the same for sale on the '7th day of July, A. D. 1873, which sale was postponed to January 1st, 1874, under an agreement with said Holland. That before the levy of said decree by said Conant, he was given written notice of the appointment of Receiver Greeley, and of his right to actual possession, and that after levy of said decree the said Greeley was kept out of possession.

That after said sale to Holland and the postponement of the sale under the decree, said Holland employed said Conant ostensibly as manager, and the said Conant, as such pretended manager, still claims to be in possession of said property with said Holland. That said Conant has been enjoined as marshal, and the said bondholders as plaintiffs, from any further proceedings under said decree, and that said Conant is not authorized by the decree under which he claims to have made said levy, to receive the tolls of said railroad, nor to interfere with its management. That said Holland has filed his answer in said suit in the Supreme Court of the United States, a copy of which is herewith filed, wherein he questions the jurisdiction of this Court as-to that part of the road lying west of Lake City, although -such jurisdiction'has never been questioned by the Jacksonville, Pensacola and Mobile Railroad Company. That all of these proceedings of the said Holland are in contempt of the orders of this court, and that the said Holland, as the. attorney of the Jacksonville, Pensacola and Mobile Railroad Company, had full notice of the orders of this court in this behalf; and that said Holland is insolvent and without property in this State or elsewhere, subject to judicial sale..

Prom the answer of defendant Holland to the bill in . equity of the State of Florida in the Supreme Court of the • United States, which is made an exhibit to this supplemental. complaint, it appears that Holland, in that court, questions!..the validity and legality of the State bonds as well as the alleged lien of the trustees.

It also appears that, upon the filing of the bill in the Supreme Court of the United States, the plaintiff (the State of Florida, in her own right as well as in right of the trustees,) entered a motion for a preliminary injunction and the appointment of a Beceiver, as prayed for in its said bill. The special writ of injunction prayed for was to command said Holland to vacate the possession of the Jacksonville, Pensacola and Mobile Bailroad, and to desist from further inter-meddling with any of the property of the Jacksonville, Pensacola and Mobile Bailroad Company, and to deliver the same to said Jonathan C. Greeley, the Beceiver of said property, or in lieu thereof, that the court appoint a Beceiver of all of the property of the Jacksonville, Pensacola and Mobile Bailroad Company situated west of Lake City. The court upon this motion failed to appoint a Beceiver, and ordered defendant Holland to account for all the sums .received by him from the earnings of said road, and to make nmonthly statements of such sums as he would receive in ‘future. At the time of filing, this supplemental complaint •¡against defendant Holland, it thus appears that he was in • possession of the road west of Lake City, and had been, up‘•on the motion of one of the plaintiffs in this cause, ordered •■to render an account of his past and future receipts from the 'iroad, the court having denied a motion for the appointment of a Beceiver, and having refused to order defendant Holland to deliver possession to Beceiver Greeley.

This supplemental complaint was filed on the 24th of March, A. L>. 1814. With it was filed an ex parte affidavit of M. S. Littlefield, giving a detailed statement of facts in reference to the matter of consolidation, the exchange of securities between the State and the companies, as well as a history of the judicial proceedings in reference to the line of railway involved in this suit. With it was also filed an affidavit of ÍL Bisbee, stating the insolvency of the parties in possession of the property, and giving the amount of interest due on the bonds of the companies held by the State. Upon the same day, and upon the application of the Trustees of the Internal Improvement Ennd, and without notice to defendant Holland, the court passed an order and decree commanding him, his agents and employees to desist from any further intermeddling with the possession of the line of road from Lake City, Florida, to the Apalachicola river,' and from exercising any control over any of the engines,, ears, etc., appertaining to the said road, as well as from removing any of said property out of the.State. The court also decreed “ that you, the said Holland, do desist from, and you are hereby enjoined and restrained from instituting any suits at law or in equity in any court or place for the purpose of asserting or claiming any right, title, or interest in, to, or of any part of said railroad, rolling stock and appurtenances, until the further order of this court.” This order is served upon Sherman Conant, manager of said Jacksonville, Pensacola and Mobile Railroad, upon the various officers upon the line of road, and upon defendant Holland, on April 1, A. D. 1874.

. Upon the application of the trustees, and without notice, the court upon the same day then ordered defendant Holland to deliver possession. This order is served and returned. The Receiver, Greeley, then reports to the court that he had passed over the line of the road on the 25th of March, taking possession of the line of road to Tallahassee, at which place the superintendent of the road failed to yield possession, and telegraphed the agents along the line of road not to obey the Receiver’s orders.

On the 28th of March, A. L>. 1874, the court entered an order directed to all and singular the sheriffs .of the State,, commanding them to put the Receiver in possession of'the road lying west of Lake City. Then follows a rule to show cause (directed to defendant Holland) why he should not be attached for a contempt in violating the order of the court of March 20th, A. I). 1872, appointing J. C. Greeley Eeceiver, in interfering with his possession and enjoining him from intermeddling with the possession of said Eeceiver. No final action appears to have been taken in this proceeding.

On the 2d April, A. D. 1874, on the motion of plaintiff, and after notice duly served upon the Jacksonville, Pensacola and Mobile Eailroad Company, the answer of that company was adjudged frivolous, as an answer to the claim and demand of the Trustees of the Internal Improvement Eund, and an order made declaring said trustees entitled to a judgment and decree against said company, for the amount due on the balance of the purchase money due on the sale of the Pensacola and Georgia and the Tallahassee Eailroads. On the same day the final judgment was entered.

This judgment is entered on the motion of the Trustees of the Internal Improvement Eund. The first portion of it decrees that the trustees do have and recover of the Jacksonville, Pensacola and Mobile Eailroad Company the sum of six hundred and sixty-one thousand eight hundred and forty-fi%7e dollars and fifty-five cents, together with costs.

The court then decrees that this sum shall be held and deemed to be against the said company, and all persons claiming through or under it, a lien upon all the property owned by or belonging to said company at the date of the commencement of this action; that the Eeceiver, J. C.' Greeley, heretofore apjmintcd in - this cause, be continued; that all the net income derived from said line of road be paid over by him to the treasurer of the trustees; that the Eeceiver continue to discharge' his duties as Eeceiver of the line of road until the further order of the court; and that the clerk of every county in which this decree may be recorded do 'issue, in behalf of the plaintiffs, the trustees, against the goods and chattels, lands and tenements of the Jacksonville, Pensacola and Mobile Eailroad Company, the writ of cJegi-t or the' writ of fieri facias for the aforesaid sum of six hundred and sixty-one thousand eight hundred and forty-five dollars, upon the praecipe of the attorney in this cause.

It.is thus seen that the court, without service of process or notice, or opportunity to answer the supplemental complaint on the part of the defendant Holland, entered an interlocutory order decreeing against his right to possession; and afterward without notice, and before the time, for answering the complaint expired, and in ten days after filing the supplemental pleading which made him a party, entered a final judgment and decree, determining against his rights to the property.

That plaintiffs think his claim is nothing makes no difference. The court must hear him before it proceeds thus finally to dispose of his rights. These orders determining the right to possession, and the final decree adjudging the right, must be reversed, in so far as they affect defendant Holland as having been made without notice or opportunity for hearing.

We next come to the consideration of the appeal and case of defendant E. M. L’Engle. He assigns for error the order of June 24th, A. D. 1872, the order of March 25th, 1874, the final judgment rendered herein on the 2d of April, A. D. 1874, and the order of April 13th, 1874.

The order of June 24th followed the filing of the amended complaint of June 22, 1872, and directs this defendant “to consolidate his suit'herewith, -or come in as a party defendant hereto.”

In the second amended and supplemental complaint, L’Engle is named a party defendant. On the 14th day of April, several days after the entry of the final judgment, and all the orders from which he appeals, he is served with a summons. He has, as such party, taken this his appeal, and has thus, under the supplemental complaint, come in as a party defendant.

This is a compliance with the order of June 24th, which is in the alternative, and we can see no ground for a reversal of this order in this respect. As a party, he can interpose such defense as he thinks his case, whatever it may be, justified. What his case is, the record now before this court does not disclose beyond the fact that plaintiffs allege that he is a stockholder in and officer of the Florida Central Railroad Company, as well as a stockholder in the Jacksonville, Pensacola and Mobile Railroad Company, claiming rights adverse to the plaintiffs in this suit.

The order of March 25, 1874, was in part based upon the view that the .order displacing Greeley and appointing Baker was void; that the original order appointing Greeley was a subsisting order, and that Greeley had the right to the possession. We need not repeat here what we subsequently sav as to the matter'of the receivership. For the reasons there given, we have determined that this order was not void, and its effect was to remove Greeley. Greeley’s power as Receiver*, under the order of June 22, 1872, being suspended and superseded by 'the appeal, it was error in the court to direct the parties in possession, who assumed to be officers and agents of the.Elorida Central Railroad Company,, to deliver possession to him. So far as it purports to make an original appointment of a Receiver upon the supplemental pleadings, we cannot see that the case by them is any stronger than that made by the eompjaint. In fact, so far as this road was concerned, nearly every material allegation made by the trustees in the complaint was put in issue by its answer. The matter of consolidation was denied, as also was the allegation that there was something due the sinking fund by the purchasers of this road. In addition to this, the supplemental complaint is not sworn to, and the appointment, if considered an original appointment, was made without notice. We deem it unnecessary to repeat here the views expressed upon this subject,- and refer to the subsequent portion of this opinion upon the subject of the appointment of a Receiver.

As to tlie final judgment herein rendered, it must be re- ' versed in so far as it affects this defendant, because it is rendered without hearing or opportunity for the same before service of summons even, and without opportunity to answer the supplemental complaint, in which he was named a party, and thereby brought into the suit. The order of April 13, A. D. 1874, is an injunction directing this defendant to cease intermeddling with the line of road between Lake City and Jacksonville, from bringing any suit at law or equity for the purpose of asserting any right to said property, either as stockholder or otherwise, from using the name of the Florida Central.Railroad Company, from in any manner appearing in, pleading in, or defending this action, and from appealing from any order in this cause, or from this order or any that may hereafter be made in the name.of the Florida Central Railroad Company, from voting, using, or parting with the possession of any stock of the corporation formerly known as the Florida Central Railroad Company. So far as this order is based upon and is supplementary to the final judgment herein rendered, it must be reversed, for the reason that this judgment upon which it is founded must be reversed. The other assumption upon which this order was made was that the officers of the Florida Central Railroad Company were wrongfully in possession, and that ’ the original order appointing Greeley was in force. This assumption, as we subsequently show, is wrong, and he could not have been entitled to possession under the order of June 22, A. D. 1872, as that had been suspended. So far as this order is based upon the assumption of consolidation, it must be reversed, because that question was in issue under the pleadings. Nor can we see any ground for such action at the suit of the trustees, as the bonds of the Pensacola and Georgia Railroad Company and of the Tallahassee Railroad Company were no lien upon the road from Jacksonville to Lake City. That portion of the order which enjoins this defendant from taking an appeal in this suit is certainly very extraordinar-y in its character.

As to the defendants, E. B. Papy and George R. Poster, the record discloses that they were simply employees of the Florida Central Railroad Company, claiming no property in the subject matter of this suit, mere agents discharging-duties directed by their principal, and therefore no necessary parties to the suit. All the proceedings against them, so far as they are the subject of appeal, arc based upon the view that the original order appointing Greeley was still in force. This we have already remarked was erroneous. These orders being reversed at the suit of the. Florida Central Railroad Company, they necessarily fail as to its officers, for it is through them that it is operated and managed.

As to the defendants ITartridge and Francis F. L’Engle, we cannot see that they are mentioned in the record otherwise than as parties claiming to be directors in the Florida Central Railroad Company. The judgment and all of these orders being reversed as to it, it follows necessarily that they fail as to its assumed directory. So far as they are stockholders, the court should not have made a decree affecting their rights without a hearing. There is no just foundation in law for these extraordinary proceedings. This suit must be dealt with as any other ordinary action. Under the pleadings in this case, the several matters of fact stated are in controversy.' These .questions must be tried, not assumed.

We now reach the last question in this controversy, upon •which, in these appeals, it is necessary for us to express an opinion. This is the matter of the appointment of the Receiver. This appointment is resisted upon different grounds by the two appellants, the Florida Central Railroad Company and Holland, each of these parties claiming- to own different parts of this line of railway. We first examine the question as to the Florida Central Railroad Company. That company was a party to the amended complaint, and the first question in reference to this matter which arises upon the amended complaint is in whose possession was the line of road which it claims to own ? J. C. Greeley had been appointed Eeceiver in this suit on the 20th of March, A. D. 1872. Subsequently a suit was brought in this court, (the Circuit Court of Duval county,) by E. M. L’Engle against the Jacksonville, Pensacola and Mobile Eailroad Company and Florida Central Eailroad Company and others. In this suit he claimed to be a stockholder in the two companies as two distinct corporations, alleging fraud and extravagant waste on the part of said corporation in the management of its affairs, charging fraud upon the State officers, and claiming rights and interests to the exclusion of the plaintiffs in this suit. ' On the application of L’Engle in his suit, Greeley, who had been appointed in this suit, was, by order of the Circuit Court of Duval county “ displaced as Eeceiver of that part of the Jacksonville, Pensacola and Mobile Eailroad lying between Lake City, Florida, and Jacksonville, Florida, described in his bill as the Florida Central Eailroad, and another Eeceiver appointed in his place.” The complaint then recites the appointment of another Eeceiver of the line of road west of Lake City by the Circuit Court of the Second Judicial Circuit of Florida, and alleges that there were then three Eeeeivers of the “ earnings ” of the Jacksonville, Pensacola and Mobile Eailroad Company-' These are the allegations of plaintiffs in their amended complaint. It appears then that this court had in another case appointed another Eeceiver, instead of the Eeceiver originally appointed in this case, who had been displaced by this order made in the suit of L’Engle, and that this (his suit) was against these corporations and the officers of the State and others. A Eeceiver does not represent the plaintiffs in a suit, and the court should not in a subsequent suit displace a Eeceiver appointed in a prior suit, affecting the same subject matter. This we state as a general rule of convenience, and do not mean to say that under some circumstances it might not be proper. The proper course, as a general rule of practice, is to extend the receivership in the-first suit over the second, subject to the legal and equitable-claims of all parties, and the rights of the parties , in each suit are substantially the same as if different persons had been appointed at the several times when such receivership was granted. If, however, a different Receiver is appointed in the second suit, then the plaintiffs may claim that the-Receiver in the former shall deliver to the Receiver appointed in his suit. (10 Paige, 47-8; 1 Barb. Ch. Rep., 268 ; 1 Hogan, 199, 268 ; 2 Paige, 342.)

The order appointing Baker Receiver, made in the suit of L’Engle, may have been erroneous and irregular, but no appeal is taken in that case, and in the absence of such appeal, it cannot be reversed or affirmed here. In the absence of the record in that case, neither this court nor the Duval Circuit Court can determine whether the case made by the bill justified this action. The proposition that the order displacing Greeley and appointing Baker Receiver is void, because not made in the same suit in which Greeley was appointed, cannot be sustained. If the court had jurisdiction of each of the cases and of both of the Receivers, then the removal of the one and the appointment of the other in either case cannot be void, for the reason that it is not made in either particular case. If the court had jurisdiction to appoint one, it had jurisdiction to remove him and appoint the other, and the order appointing Baker is not here for review. The cases cited by the respondents are cases in different courts, and the basis of the decisions is the well recognized principle that between courts of concurrent jurisdiction, the court that first obtained possession of the controversy, or of the property in dispute, must be allowed to dispose of it finally without interruption from the co-ordinate court. (20 How., 595-6.)

The authority cited in reference to the possession of a Receiver (14 How., 65) is to the effect that any attempt to disturb such possession, without lea/oe of the court first obtained, will be a contempt, and that wben property is in the custody of a court of chancery, a sale under an execution issuing from another court is void. Here, however, the Eeceiver was displaced by the same court that appointed him. The .action was not without leave of the court, but was by order of the same court that placed him in possession. The respondents here affirm that the order of June 22d, 1872, does not purport to appoint Greeley Eeceiver, but simply.vacates the appointment of Baker, and directs that Greeley be held and regarded as such Eeceiver of the whole line of road, and that he is still Eeceiver under the original order, and that no appointmentof aEeceiver, under the order of the 22d of June, is here for review, as none was made. As much importance is given to this position, we will examine it at some length, although we think it a very simple matter. In addition to the allegations of the complaint, stating that a Eeceiver had been appointed by this court in the case of L’Engle, and the former Eeceiver displaced, .we find a report of the Eeceiver Greeley, filed on the 7th of June, A. D. 1872, in which he' states “ that the Florida Central Eailroad, in the hands of Eeceiver J. M. Baker, collects a portion of the freight and passage due to and belonging to the Jacksonville, Pensacola and Mobile Eailroad Company ; that the business on the line of road is such that the agents of such road receive the whole-amounts of the entire distance traveled ; that this Eeceiver cannot obey the orders of this court unless all the moneys belonging to the Jacksonville, Pensacola and Mobile Eailroad Company are paid over to him when collected by any officer or agent of the Florida Central Eailroad Company, under said Eeceiver James M. Baker.” He then prayed an order directing Eeceiver Baker to pay to Eeceiver Greeley all moneys arising from freights' or passengers carried over any part of the line of road from .Lake City to the Apalachicola river. The court thereupon ordered James M. Baker, the Eeceiver of the Florida Central Eailroad,- to require all agents and employees of the Florida Central Eailroad Company to pay all such moneys to the Receiver James M. Baker, and directed him to pay such moneys to Receiver Greeley. It is thus seen, from the record in this case, that, as a matter of fact, the Receiver, Greeley, was not in possession; that he had been displaced, and an order made appointing another person Receiver of the earnings of this road, and that the road was in possession of the “ agents and employees of the Florida Central Railroad Company.” It is clear that the order in the L’Engle suit was not void, and the necessary result is, that if Greeley was not appointed under the order of June 22d, A. D. 1872, Receiver of this road, he was no Receiver at all, for he certainly had been displaced according to the allegations of the complaint and the order of the court of the 7th of June, made in this case. The order of the 22d of June directs that the order appointing. James M. Baker Receiver of so much of said railroad as was east of Lake City be vacated, as prayed for, and Jonathan C. Greeley be held and regarded as such Receiver of the whole line of j-oad. Its legal effect is “ an order reappointing Greeley ” Receiver of the road 'from Jacksonville to Lake City, and vacating the previous order appointing Baker such Receiver. All presumptions are in favor of the propriety of the. action of the court, in the absence of the record in the suit of L’Engle. We .cannot, collaterally, in this suit, determine otherwise. If the matter was within the jurisdiction of the court, arxd no question of jurisdiction, is raised by appellant, “ it is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decisions be correct or otherwise, its judgment, until reversed, is regarded as binding on every other court.” Fi’om the nature of the case of L’Engle, as stated in the complaint, the report of Receiver Greeley, on the 7th of June, and the order of the court of that date, it is apparent that the Florida Central Railroad Company was a defendant in the L’Engle suit, and that tbe suit was by a stockholder in the Jacksonville, Pensacola and Mobile Railroad Company, and the Florida Central Railroad Company, seeking the appointment of a Receiver, and that, the action was brought upon the hypothesis of no amalgamation of the two roads. It was apparent, from-the allegations of the bill, that the matter of consolidation was disputed, both by what assumed to be the- company, as well as persons claiming to be bona fide stockholders. This company was itself named a defendant in the complaint. What was the case made by the complaint ? The prayer of the original complaint was for a simple judgment against the Jacksonville, Pensacola and Mobile Railroad Company for a Receiver of the road and of the stock of the two companies, with power to vote the stock, for a sale of the stock, and for an injunction. No relief was prayed in behalf of the State of Florida. The prayer of the amended complaint it is difficult to understand. It prayed a sale of the road, the receiver to announce, as conditions of the sale, “ that said railroad is sold, subject to the same rights of the Trustees of the Internal Improvement Fund, under said act of 1855, that heretofore existed to enforce the payment to the fund from the. said road, as well as what may hereafter fall due, according to the terms of said act of 1855, and upon the condition that the purchaser buys the road subject to the claim of the State of Florida, growing out of the exchange of securities, as fully and amply as though such had not taken place.” . The most that can be said of this prayer of the complaint, original and supplemental, is, that they pray for judgment in behalf of the trustees, and a sale-of the road to satisfy that judgment, and for a Receiver. No judgment or relief was prayed in behalf of the State. It is a rule of the code that if there be no answer, the relief granted cannot exceed that which is demanded in the complaint, even where the defendant makes no defence. , In this cash, the State, in the absence of an answer, would have been entitled to no decree ; and in the absence of an answer, no order should have been passed by the court, in view of' the equities of the State, as set forth in the bill, when the State asked no relief, and had apparently made herself a party for no other reason than to show her assent to the action of the trustees. The State having asked no final decree, based upon her equities, could .not have a Receiver appointed at her instance, which should only be done to have the property in the custody of the law, to meet a judgment based upon her equities. Not only is this true of the complaints, original and supplemental, but it is also true that the final judgment entered in this case is in behalf of the trustees, with the exception that it recites that it is decreed, in behalf of the State, that there is a consolidation. And if that is all the decree it sought, this certainly could not justify the appointment of a Receiver. The State, also, in its bill in the Supreme Court of the United States, alleges that this suit was brought “ for the purpose of recovering the balance of the purchase money ” aforesaid, (that is, the sum due the trustees,) to-wit, “ the sum of four hundred and seventy-two thousand dollars, with interestand the amended and original complaints in this action are there filed as exhibits. There are other allegations of the State in its bill in the Supreme Court of the United States which manifest the like purpose, but, as we have said before, it is sufficiently apparent on the face of the original and amended complaints on file on the 22d day of June, A. D. 1872. Assuming, for the purpose of disposing of this question, that there was a lien in behalf of the trustees, to the extent of the first mortgage bond debt of the Pensacola and Georgia Railroad Company, it is very clear that this lien did not extend beyond the line of the former Pensacola and Georgia. Railroad. A mortgagee cannot be said to have any equitable rights looking* to receivership in the property of the mortgagor, beyond that included in the mortgage. Whether there was consolidation or not, the lien of the trustees did not extend beyond the property embraced in the mortgage; and the road from Lake City to Jacksonville was not therein. The complaint claims ho balance of purchase money as due from the purchasers of the road at the sale under the act of January 6, 1855, and only states that such purchasers have not complied with the condition of the sale as to continuing the payment of the sinking fund upon the outstanding bonds. It fails to state what amount oi\ bonds are outstanding, and only states that the total amount due the sinking fund by the purchasers of the several roads was about thirteen thousand five hundred dollars. What portion of this was due by the purchasers of this line of road is nowhere stated. The act of January 6, 1855, provided that these purchasers should be bound to continue the payment of the sinking fund, under the penalty of an annulment of the contract of purchase, and the forfeiture of the purchase money paid in. The allegations of the complaint are so uncertain and indefinite as to this matter, as to give no amount as due by these purchasers. Granting, for the purjtose of disposing of this question, that this penalty and forfeiture might have been enforced at the hearing in the event the proof sustained these allegations, still we cannot see that it was either necessary or expedient for the court to take possession of this property, and appoint a manager of a line of railway in the meantime, or that such injury was to be apprehended by a short delay, as justified the court in dispensing with notice to the parties defendant. “As a general rule, a Receiver should not be appointed without notice to the opposite party.” Formerly, the practice was not to appoint before answer.- Except under very exceptional circumstances, an application for a Receiver should not be considered when made without notice. A case of great urgency should be made to appear. (Kerr on Receivers, 137 and citations.) In this case, the appointment of Greeley over Baker was contrary to the general rule; and as it appeared on the face of the complaint that the Florida Central Railroad Company claimed to own this property, we think it was an improper exercise of discretion by the court to make such an appointment with or without notice to it, and especially is this true in the light of the order of June 7, in this case, from which it appears that this line of road was at that time in possession of the agents and employees of the Florida Central Railroad Company, with directions to pay the earnings thereof to the Receiver Baker, and Receiver Baker is called in the complaint a Receiver of the “ earnings” of this road. It is our conclusion that the case made by the complaint, considered in connection with the last action of the court in this case on the 7th of June, and of the proceedings then before the court, so far as they appeared in this record at that time, did not justify the appointment of a Receiver as against the Florida Central Railroad Company, and that there is no sufficient reason disclosed in this record for the removal of Baker, the Receiver of the “ earnings ” of the Florida Central Railroad Company, and the appointment of Greeley, as manager of the road, as distinct from a Receiver of its tolls.

Having thus disposed of the question of receivership, as to this line of road, we consider the question in reference to defendant, D. P. Holland. Subsequent to the appointment of Greeley Receiver, by the Circuit Court of Duval county, and in May, A. D. 1873, Holland sold the equity of redemption and all the interest of the Jacksonville, Pensacola and Mobile Railroad Company, in the line of railway from Lake City to Quincy, and from Tallahassee to St. Marks, under an execution issued upon a judgment before that time obtained by him against this company in the Circuit Court of the United States for the Northern District of Florida.

At this sale he became the purchaser, and credited the amount of his bid on the execution. About this time holders of first mortgage bonds of the Pensacola and Georgia Railroad Company instituted a suit in the Circuit Court for the Second Judicial Circuit of Florida, and F. B. i'apy was appointed by that court Receiver of the line of road west of Lake City. In July, 1872, other first mortgage bondholders filed a bill in .the Circuit Court of the United States, Northern District of Florida, against the Jacksonville, Pensacola and Mobile Railroad Company and the trustees. In this' suit in December, A. D. 1872, the Jacksonville, Pensacola and Mobile Railroad Company, withdrawing its answer, and the suit being dismissed as to the trustees, a decree pro eonfesso was taken against the Jacksonville, Pensacola and Mobile Railroad Company. Papy, under an agreement between the parties, was then dismissed as Receiver.

On the 19th of December, the marshal levied 1ns decree' on property west of Lake City, and advertised it for sale on the 7th of July, A. D. 1873. The sale was postponed to January 1, A. D. 1874. After the sale to Holland, and this postponement, Holland remained in possession. The State of Florida, in its own right, and in right of the trustees, filed an original bill in the Supreme Court of the United States, setting up the exchange of securities between it and the railroad companies, alleging that there was a balance of purchase money due the trustees under the original sale, as well as a large amount of interest due the State on the bonds of the Jacksonville, Pensacola and Mobile Railroad Company, stating the before-mentioned proceedings in the courts of the State and the United States in Florida, and praying witer alia for injunction against the marshal, the plaintiffs in the suits in the United States Courts, and for an order to deliver possession to Receiver Greeley, or, in lien thereof, that the Supreme Court of the United States ■appoint a Receiver for all the property west of Lake Gity. Upon motion for the appointment of a Receiver after notice, the Supreme Court directed Holland to report his future and past receipts from the road in his possession. With Holland thus in possession, the Circuit Court of Duval county, in this case, ordered him to surrender this possession to Receiver Greeley, enjoined him from any further intermeddling with the possession, and under a writ directed to all and singular the sheriffs of the State, he was dispossessed. and Greeley • was put in actual possession of the road west of Lake City. Holland now seeks a reversal of these orders, one of the grounds being, that there is no jurisdiction in the Circuit Court of Duval county thus to take into its custody property beyond the territorial limits oí the circuit.

This is a question of great importance, and in view of the conflict of jurisdiction between the second and fourth judicial cii’cuits in this, case, it should be settled. Under the constitution, this State is divided into seven judicial districts, and “ the Circuit Courts in the several judicial circuits ” are invested with general original jurisdiction in law and equity. There is no legislation which authorizes the appointment of a receiver of property which is beyond the territorial limits of the circuits. Under these circumstances we can reach no other conclusion than that no such appointment can be made effectively; and that the Circuit Court, in all of its orders in this case, appointing a receiver of property beyond its limits, went beyond its authority. In the language of Mr. Justice Story, in Picquet vs. Swann, 5 Mason, 40 — “ This results from the general principle that a - asurfc created within and for a particular territory is bounded ■In the exercise of its powers by the limits of such territory. It matters not whether it he a Kingdom, a State, a county, ■ or a city, or other local-district. If it be the' former, it is necessarily bounded and limited by the sovereignty of the government itself, which cannot be extra territorial; if the latter, then the judicial interpretation is that the sovereign has chosen to assign this special limit short of Ins general -■ authority.” It is a general principle of the common law .that no writ or process can run or be executed beyond the 'derritorial jurisdiction of tbe court out of which it issues; d independent of legislation, there can be no doubt thattbe Circuit Court of one circuit cannot through ist receiver take possession of property in another circuit. There is no sucb legislation in this State, and we doubt very much whether such legislation would not be in conflict with the-constitution, but that question is not here involved. In Galpin vs. Payne, 18 How., 367, the Supreme Court of the United States uses this language: “ The authority of every judicial tribunal and the obligation to obey it, says Burge, in his Commentaries, are circumscribed by the limits of the territory in which it is established.” Under the Constitution of Arkansas, in A. D. 1839, the Circuit Court organization was similar to that existing under the present Constitution of Florida. The Supreme Court of that State, (2 Ark., 503,) speaking of this organization, says: “ The constitution has distributed the State into a given number of separate and independent circuits, has required a judge to be elected for each of. these circuits,- whose power and authority is restricted and limited to the prescribed and ascertained boundaries • of his particular district. The constitution has furthermore established a Circuit Court in each county of the State, and it has fixed and confined its territorial jurisdiction within the boundaries thereof. No writ or process, according to the common law, can run or be executed beyond the limits' of the territorial jurisdiction .of the court out of which it issues; and it is clear that the court of one county cannot run its writs or process within the boundaries or limits of another county without some legislation on the subject. What class of eases and for what purposes the Legislature may authorize the Circuit Court of one county to run its writs and have the same executed within the boundaries or limits of another, is a question of some nicety.” (4 Mon., 437-8; 2 B. Mon., 203; 4 J. J. Mar., 407-8-9; 1 Dana, 109; 2 Bibb, 445; 1 ib., 410; 1 Ind., 1; 1 Scam., 404.) We do not question the power of a court of equity to require a defendant, within its jurisdiction, to perform any act or do anything in reference to property in another jurisdiction or foreign State. We simply say that a Circuit Court in the State of Florida, under our constitution and laws, cannot by its officer take possession of property beyond its territorial jurisdiction.

We leave this subject with these general remarks. The appointment of a receiver, with directions to take possession of and manage a line of railway — in other words a manager, is an extraordinary exercise of power. In the case of Gardner us. The London, Chatham and Dover Railway Company, (2 Law Reports, Ch. Appeals, 201,) Lord Cairns says that a court of chancery will not appoint a manager of a railway company. This he puts upon the ground that the company is in the exercise of powers and the discharge of duties and responsibilities confided exclusively to the persons composing the company, and the court should not by its action, without any parliamentary authority, make itself .and its officers the hand to execute these powers and public duties. This rule has been modified in the United States. (18 Grattan, 828; 99 Mass., 395 ; 38 Ver., 408; 6 C. E. Green, 298.) Under the statutes of many of the States (this State among the number,) a receiver of a line of railway is under some circumstances authorized. As a general rule, we do not hesitate to say that a very strong case should be presented before a court should resort to a remedy so extreme, and with reference to the management of the road, so revolutionary in its character. We can hardly imagine a case where it should be done without notice. The road is local, and cannot be taken beyond the jurisdiction and control of the court, and in many cases an injunction or restraining order will accomplish all that is necessary to protect the rights of plaintiffs.

This cause coming on to be heard upon the three separate appeals, taken at different stages of the cause, the defendant, the Florida Central Railroad Company, being the appellant in the first appeal, and the said Florida Central Railroad Company, Edward M. L’Engle, Daniel P. Holland, and Tames Hunter, being appellants in the second appeal, and said Edward M. L’Engle, Francis R. Papy, George R. Foster, Francis F. L’Engle, and Theodore Hartridge, being appellants in the third appeal, said appellants being defendants at the time of taking their appeals, and the questions involved in said appeals having been argued and submitted together by the counsel for the different appellants and the 'respondents, and the court being advised of its opinion in the premises, and wishing to dispose of all the questions raised by said appeals, -it is therefore ordered, considered, and adjudged by the court that the judgment of the Circuit Court of Duval county, rendered in this case on the second day of April, A. D. eighteen hundred and seventy-four, and the order of the thirteenth day of April, A. D. eighteen hundred and seventy-four, be and the same are reversed and set aside and vacated, and that all and every order made in said cause, appointing or continuing a receiver in this cause, and all orders consequent upon the same, and all orders restraining the appellants or any of them, or granting or continuing any injunction against the appellants or any of them, except in só far as any of said appellants are restrained or enjoined from disposing of stock in the alleged Florida Central Railroad Company, be and the same are reversed, set aside, and vacated. And it is further considered that the case, including the three appeals, be remanded to the Circuit Court of Duval county, there to stand for hearing upon the issues made, or to be made by the pleadings, or for such other disposition as is comformable to law, and not inconsistent with the opinion filed in these appeals.

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Dissenting Opinion

Bryson

dissenting:

I am unable to agree with that part of the opinion in. this case, “ that the Circuit Court, as a court of equity, has no jurisdiction beyond the territorial limits of its circuit,” and as it is remarked b.y Justice Westcott in the opinion, “ this is a question of great importance,” I will state my reasons in as brief a manner as possible. The case in 18 Wallace, 350, relied upon by the appellant in this case, has reference to the jurisdiction of a court of law, and a judgment of a court of law, and it is only necessary to refer to the case of Picquet vs. Swann, 5 Mason, 40, to show that it had refer, ence to a court of law, where Mr. Story uses this language: “ Even the. Court of King’s Bench in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland or the Colonies.” This is certainly true, and it is ■ equally as trué that the Court of King’s Bench is a court of common law, and never had any equity or chancery jurisdiction. The same remark will apply to the jurisdiction of county courts in this State. They are courts of limited jurisdiction, and have no equity or chancery jurisdiction or power whatever; and are confined to the county. But it cannot be denied that the courts of equity, both in England and America, have exercised jurisdiction outside of their territorial limits íor a considerable length of time; in fact we find them exercising this jurisdiction almost from their creation. In 2 Daniel’s Chancery practice, “It is not necessary in order to authorize the court to make an order for a Receiver that the property in respect to which he is to be appointed should be in England. A Receiver will be appointed here of property in the East Indies, in which case the Receiver must find sureties who are residents in England.” 2 S. and S., 453. “ A Receiver may also be appointed of estates in Ireland, but it seems that in such cases the recognizance of the record and his securities entered into and enrolled in that country.” 2 Daniel’s Ch. practice, 1425. “ It may also be mentioned that officers, in the nature of Receivers, are frequently appointed of plantations in the West Indies, but as a plantation in the West Indies partakes in some measure of the nature of a manufactory or trade, instead of a Receiver, the person appointed is usually called a manager.” 2 Daniels, 1424.

Kerr on Receivers at- page 259 : “ When the suit relates to property abroad, or in the colonies which partakes of the nature of a trade, it is competent for the court to appoint a manager.” Referring to L. R., 2 Ch., and pp. 212, 213, “ the manager is appointed in such cases, not for the -purpose of carrying on the trade, but to enable the court to give relief when the cause shall be heard, referring to Waters vs. Taylor, 15 Ves., 25 per Lord Elden ; Shepherd vs. Oxenford, 1 If. and J., 500.” “ Persons, for instance, have been appointed to manage landed property, to receive the rents and profits, and convert, get in and remit the proceeds of property and assetts, when such property has been situated in India, the West Indies, Demarara and the Brazils.” If err onRec., 260. “In conclusion,” says Mr. Daniel, 2 Vol., E., 1449, “it may be mentioned that the term manager or consignee, as distinguished from receiver, is sometimes used with respect to certain descriptions of property, as mines? collieries, or West India estates. There does not seem to be any substantial difference in the practice with respect to the officers thus designated, and by the interpretation clause of the order of the 16th of October, 1852, the word Receiver includes consignee and manager. It does not appear that this distinction has been made in this country, but that the order designates the duties of that officer. Then it clearly appears that in England a Receiver may be appointed over property outside the jurisdiction of the court. In this country it will be seen that the practice is not so uniform, but it will be seen that the principle is recognized by most of the States. It will appear by reference to the case of Booth vs. Clarke, 17 How., 322, the Supreme Court of the United States holds, that a Receiver appointed in the First Circuit of the State of New York could sue for and receive property outside of the State. The court in that case uses this language on page 536, condensed reports : “ No attempt was made, according to the chancery practice, to cause Clarke, by the attachment of his person under the injunction, to make an assignment of that claim for the payment of Camara’s judgment.” “ It cannot be said that Clarke had no property to assign, and that it was, therefore, unnecessary to attach him. That would make no difference, for whether with or without property he might have been compelled to make a general assignment, even though he had sworn that he had none.” It was so ruled in Chipman vs. Sabbatton, 7 Paige C. R., 47, and in Fitsburgh vs. Eveiingham, 6 Paige, 29.” “ There was a want of vigilance in this matter which does not make-any equity which he. may have in New York upon Clark’s property superior to that of Clark’s creditors, who are pursuing the funds in this district;” clearly showing that if the proper proceedings had been had the Receiver might have maintained his action, for the effects claimed in that suit, outside of the State of New York, not merely outside the jurisdiction of the territorial limits of the First Judicial Circuit. “When the appointment oí a Receiver has been perfected by filing of the report and security, the title to the personal property, covered by the Receivership, vests in the Receiver without any assignment or transfer from the person in possession.” 9 New York R., 142. “ But that is not so with the real property. That passes by force of the debtor’s own conveyance, which the court has power to compelí him to execute.” 19 New York R., 369 ; Thompson on Provisional Remedies, 480. It was held in Mitchell vs. Bunch, 2 Paige R., 615, that a Receiver might be appointed over property outside of the jurisdiction of the court. That, “ although the property of the defendant is beyond the territorial reach of the court, so that it can neither be sequestrated, nor taken in execution, the court does not lose its jurisdiction to that property, provided the person of the defendant is within the jurisdiction.” “By the ordinary proceedings, the defendant may be compelled either to bring the-property in dispute, or to which the complainant claims an equitable title, within the jurisdiction of the court, or execute such a conveyance or transfer thereof as will be sufficient to vest the legal title as well as the possession of the property, according to the lex loci rei sitce¿” the identical mode indicated by the Supreme Court of the United States in 17 How., 332. It will be seen that the same principles are laid down in Daniels Ch. Practice, 2 Vol., 1045, 1046, and the same doctrine is more fully set forth in Story’s Equity Jurisprudence, 743-4. “The proposition may, there; fore, be laid down in the most general form, that to entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situated within the jurisdiction of the State or country where the suit is brought,” says Mr. Story, and with all his ingenuity and talent for research, he was only able to find two cases in this country where a contrary ruling had been made, and both of these were governed by •peculiar circumstances surrounding them. “The case in Pennsylvania it was decided 'that .the court had no jurisdiction over.a bill praying for an injunction against'the defendant residing in another county, but who was temporarily within the jurisdiction of the court, for erecting a nuisance which injured the plaintiffs’ land in that county; for to give complete remedy in such a case, a court must not only restrain and prevent a continuance of the nuisance, but must order its removal and give compensation in damages for the injury already caused, and for a court of equity to give this ample relief, the locus in quo must be within the absolute jurisdiction of the court.” 1 Parson’s Eq. R., 387. The case in North Carolina referred to — it appears that one of the joint executors resided in the State of Tennessee, and that the lands and those having the legal title to the same were in Tennessee, and only one of the executors before the court. It. was fully admitted by defendants’ counsel and held by the court, that where either the person or the subject matter of the suit was within the jurisdiction of the court, that the court had jurisdiction of the whole.

It appears from the pleadings that this suit was commenced under the Code, and that the statute repealing the Code uses this language:. “Section 11. That all suits already commenced, and all pleadings already in, shall not be affected by any of the provisions of this act, bat shall be proceeded in as if the act had not passed.” Act 1872, p. 18. It appears from the act that the jurisdiction of the court is not diminished. See Sec. 192. A Eeeeivér may be appointed, first, before judgment, on the application of either party, when he establishes an apparent right to the property which is the subject of the action, and which is in the possession of an adverse party, and the property or its rents and profits are in danger of being lost, or materially injured or impaired, except in cases where judgment upon failure may be had without application to the court.

Mr. Thompson, in his work on Provisional Eemedies, after copying the section, of which our Code is an exact copy, says: “ This section bears upon its face unmistakable evidence of a determination by the Legislature in its enactment between actions at law and suits in equity. The first and second branches of the section plainly apply to the latter class of actions exclusively, while the third is clearly intended to apply to actions at law, and is, therefore, an obvious enlargement of the power of the court to enjoin. The first two clauses are, in substance, a mere embodiment of the established equity principles as they existed before the Code, and cannot be construed to create new rights of action or give new remedies j nor are they, in any sense, an abridgement of the former jurisdiction of the court.” “The provisional injunction allowed by this section may be granted in every case where a temporary injunction would have been proper under the former practice.” Thompson on Provisional Remedies, p. 204, § 2. And he refers to the case of Rawlins against Joel, 13 N. Y., 488. Again the same author says, “ that every kind of property of such a nature that if, if legal, it might be taken in execution, may be, if equitable, put into the possession of a Eeceiver; and here the appointment of such a person has been said to be an equitable execution,” (page 483,) and referring to Edwards on Eeceivers in Equity,-under the former practice, p. G. “If the property is in the possession of a third person, claiming a right to retain it, the Receiver can proceed by suit against such person in the ordinary way, and thus try the right, or the plaintiff may' amend his complaint, making such third person a party, and the receivership extended to the property in his hands, so that the order for the delivery of the property may be binding upon him, and be enforced, if necessary, by process of contempt.” Thompson on Provisional Remedies, 483, referring to 8 Paige’s Reports, 390. Then it clearly appears that the powers of the court under the Code have not been abridged or made less. It appears from the pleadings in this suit that it is brought by the State of Florida .and the Trustees of the Internal Improvement Fund against •the Jacksonville, Pensacola and Mobile Railroad Company, a corporation created by the laws of Florida, authorizing it to construct a line of railway from Quincy, west, to the Alabama line, with the privilege of extending it to Mobile, Alabama. The act also authorizes said company to consolidate with any road, or part of road, completed from Quincy to Jacksonville, and to operate the whole line of railway from Jacksonville to Quincy, by consolidation or otherwise. The act, as amended, authorizes the Governor of the State to deliver to the President of the Jacksonville, Pensacola and Mobile Railroad Company the bonds of the State for all the road completed and in good running order, in exchange for •the like amount of bonds of the Jacksonville, Pensacola and Mobile Railroad Company, which bonds are to be a statutory lien upon the road and all its property. That the bonds of the State had been issued and delivered to the President .of the Jacksonville, Pensacola and Mobile Railroad Company to the amount of four million dollars, and as the same amount of bonds had been issued by said company and delivered to the State by the President of said company, but that one million of dollars of the- bonds so issued by the State were payable to the Florida Central Railroad Company, and the same amount of bonds delivered to the State by the President of the Jacksonville, Pensacola and Mobile Railroad Company, were issued by and under the seal of the-Florida Central Railroad Company ; that • the Florida Central Railroad formed part of the line of railway from Jacksonville to Quincy; that the whole line of road from Jacksonville to Chattahoochee was in possession of the Jacksonville, Pensacola and Mobile Railroad Company; that its principal office was in Jacksonville ; that all the business of' the corporation was transacted at that office; that at the commencement of this suit, Chase, Ambler and Flagg were operating the whole line under a lease from the Jacksonville, Pensacola and Mobile Railroad Company. It appears that this line of railway in operation extends entirely through the second and third circuits, and that about forty-nine miles of the railway, and the principal office, are within the fourth ciicuit, and all within the State of Florida ; that the process-had been served upon the President of the Jacksonville,. Pensacola and Mobile Railroad Company in the fourth circuit. Then, applying the principles of equity jurisdiction, and the jurisdiction under the Code, heretofore referred to, and the more clear and pointed doctrine'declared by the Supreme Court of the United States in 9 How., 390, a court of equity having obtained jurisdiction for one purpose, will proceed to grant full relief. “If the court of equity has jurisdiction of part of the subject matter and the defendant, it may .direct a public sale of lands lying out of its territorial jurisdiction, and compel the party to convey.” Lyman vs. Lyman, 2 Penn., 11; King vs. Tuscumbia, Courtland and Decatur Railroad Company, 7 L. I., 166. These.two-last authorities are from the State which Mr. Story relies on. Though equity cannot act directly on the land not within its-jurisdiction, it may compel the holder of the title who is a party before the court to give effect to a lien. Lewis vs.. Darling, 16 How., 1. Applying these well settled rules, I am compelled to hold that in this case, if a proper case had been made, and the proper proceedings had, that the court did have j urisdiction of the whole line of road, and did have authority to make any order that was necessary to protect the whole property until the rights of the parties could be determined. The property of the defendant may be sold in any county in the State under an execution issued upon a decree of the court, and it cannot be that a court of equity has not the power to protect any property which may be finally disposed of by it. If a court of equity has not the authority when it has possession of part of the subject matter, and the defendant is before it, to reach any property within the State, then that long arm; which is dwelt on so much by writers on Equity Jurisprudence, and so often used by courts of equity to prevent fraud and injury j has become very short in Florida. Suppose this suit was alone ■ against the Florida Central Railroad Company, when forty-nine miles of that road lie within the territorial limits- of the fourth circuit, and only eleven in' the third, can it be possible that that court would not have jurisdiction to protect the whole of the property in litigation until the rights of the parties are determined ? As the order appointing a Receiver, directing Greeley to take possession, and displacing Holland, was made without notice, and after the plaintiff had filed a bill izi aziother court, making .Holland a party, and asking for a Receiver, and that court having continued Holland in possession and amenable to that court, it is certainly without precedent, and for these reasons, the order must be revei'sed.

Tlie appointing a receiver to run a railroad is certainly a modern invention, and there is certainly nothing in the proceedings in this case that authorizes any such an appointment under any precedent which can be found.

I fully concur with all the other rulings of the court.

Case Details

Case Name: State v. Jacksonville, Pensacola & Mobile Railroad

Court Name: Supreme Court of Florida

Date Published: Jan 15, 1875

Citation: 15 Fla. 201

Court Abbreviation: Fla.