233 Pa. 114 | Pa. | 1911
Opinion by
On September 1, 1908, the Philadelphia, Bristol & Trenton Street Railway Company defaulted in the payment of interest due on its bonds, secured by a mortgage on all of its property, rights arid franchises. The bonds so secured and issued amounted to $650,000 and were of the denomination of $1,000 each. On September 5—
The first question to be passed upon on this appeal is as to the sufficiency of the bill. Several reasons were given by the court below for sustaining the demurrer to it. The complainant’s averments, upon which he based his right to file it, were that he was a bondholder of the railway company and his bonds were secured by a mortgage of that company; but his bill neither contained nor had appended to it a copy of one of the bonds or of the mortgage, nor was there any reference to the place where the latter was recorded. The court was, therefore, in ignorance of the complainant’s rights under his bonds and the mortgage when called upon to pass on the sufficiency of the bill, which, in effect, is one for foreclosure, no matter how strenuously it is now repudiated as such by the learned counsel who filed it. It is not one of a
After the appointment of the receivers had been vacated they filed their account, charging themselves with the receipts of the road during their management of it and taking credit for certain disbursements. The credits taken for moneys paid out for the operation of the road were not objected to, but exceptions were filed and sustained to the items making up the legal expenses of the receivership. These items were for counsel fees, receivers’ compensation, etc., amounting to $1,561.57, and the second complaint on this appeal is that Wagner, the appellant, was directed to pay them. When the court below passed upon the petition to impose the expenses of the receivership upon him there was before it a clause in the mortgage providing that no holder of any of the bonds secured by it should have the right to institute any proceedings for the appointment of a receiver until certain conditions had existed, no one of which existed when the bill was filed. Among these conditions precedent to the right to file a bill for the appointment of a receiver was one providing that default in payment of interest on the bonds should have continued for six months, that written notice of such default should have been given to the trustee named in the mortgage, and holders of twenty-five per cent in amount of the bonds secured by it, and then outstanding, should have made written request upon the trustee to proceed to exercise the powers granted to it by the- mortgage. This bill was filed four days after default in the payment of interest, and, on the ex parte application of the complainant, without notice to any one, the temporary receivers were appointed. In view of the plain and unambiguous terms of the mortgage, with which the complainant is conclusively presumed to have been familiar, and which he deliberately disregarded in filing his bill, there is no conceivable reason why the costs and expenses of the receivership should be borne by the
The assignments of error are overruled and the decree is affirmed at appellant’s costs.