Williams v. City Bank & Trust Co.

Citation186 F. 419
Decision Date11 April 1911
Docket Number2,173.
PartiesWILLIAMS et al. v. CITY BANK & TRUST CO. et al.
CourtU.S. Court of Appeals — Fifth Circuit

G. Q Hall, for appellants.

W. E Baskin and Wm. H. Armbrecht, for appellees.

Before PARDEE and McCORMICK, Circuit Judges.

PARDEE Circuit Judge.

This is an appeal from an interlocutory order granting an injunction pendente lite, and there is a motion to dismiss the same on the ground that all the defendants are not made parties to this appeal.

The record shows that immediately upon granting the injunction pendente lite 'the said parties defendant thereupon in open court presented their petition accompanied by bond in the penalty of $500 signed by the United States Fidelity & Guaranty Company as the surety, conditioned as provided by law, which said bond is hereby approved, and, having filed and presented this said petition and assignments of error and done the other things necessary for the perfection of their appeal in the premises it is ordered, adjudged, and decreed that the said appeal as prayed for be granted and allowed.'

When an appeal is taken in open court, it is taken against all adverse interests. All parties are present in fact or in law, and they have notice then and there. No citation is required. Chicago & Pacific Railroad Co. v. Blair, 100 U.S. 666, 25 L.Ed. 587; Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251. And see Taylor v. Leeznitzer et al. (U.S. S.Ct. March 20, 1911) 31 Sup.Ct. 371, 55 L.Ed. . . . .

It follows that, whatever objection is urged in regard to the failure to summon and sever and notify parties in this case, it is not jurisdictional, and, as in the case above cited, the defect, if any, may be corrected in this court.

The motion to dismiss the appeal is therefore denied.

The bill in this case was filed by the complainant, a citizen of the state of Alabama, the trustee in a trust deed granted by the Meridian Light & Railway Company, a corporation created under the laws of Mississippi, to secure a series of bonds, naming as defendants the Meridian Light & Railway Company, the mayor and boards of councilmen and aldermen of the city of Meridian, and 40 or 50 persons, all citizens of the state of Mississippi, for the purpose of protecting the Meridian Light & Railway Company from all hindrance and opposition in double tracking by laying an additional track for the street railway on Eighth street in the city of Meridian, and, if the court has and should exercise jurisdiction, we find that, although the so-called restraining order issued in the case and from which no appeal was taken is subject to some of the criticisms of appellant, there is no good reason in the record for holding that the order granting an injunction pendente lite, which is the subject of this appeal, was improvidently or erroneously granted.

Our inquiry then is directed to the question whether the Circuit Court has, and should exercise, jurisdiction in the premises.

An examination of the lengthy bill and its exhibits, the charter of the Meridian Light & Railway Company, the deed of trust granted by it to complainant, the ordinances of the city of Meridian granting privileges and franchises to the railway company, the answers of the Meridian Light & Railway Company, and of the mayor and boards of councilmen and aldermen, and the answers of the private parties defendant to the bill, all too lengthy to be copied here, show only one controversy, and that a controversy primarily between the Meridian Light & Railway Company and the abutting property owners on Eighth street of the city of Meridian as to whether the light and railway company should be permitted to exercise its rights under its charter and franchise and double track Eighth street without previous compensation to the abutting property holders.

Aligning the parties to the record and according to interests involved, this controversy is between the trustee, complainant in the bill, the Meridian Light & Railway Company, the mayor and boards of councilmen and aldermen of the city of Meridian, and, as we gather from the pleadings, the public interests generally, on the one side; while on the other side are the aforesaid protesting property holders.

The question then for us to determine is whether the complainant, as trustee, and without showing any other interest than that it and the bondholders it represents will be benefited through enhancing the security and increasing the revenues of the light and railway company by the extension of its lines, can invoke the interference and protection of the United States Circuit Court in equity to decide the controversy; and this without averring that the failure of the light and railway company to avail itself of the permission and authority granted by the city of Meridian will result in impairing the security that the said complainant may now have to such an extent as to affect adversely the ability of the light and railway company to fully comply with all its obligations as stipulated in the deed of trust.

The bill avers:

'Your orator would further represent and show unto your honors that the said bondholders who are represented by your orator are more deeply interested in the properties of the said street railway company and the protection of it and the successful use of the same than any other corporation, person, or persons, and that, in order to meet the public demands and to properly use said property, it is necessary that the said street railway company should extend its street railway lines and further equip said street railway so as to further facilitate the purposes for which it was organized and incorporated, and to thus enable it to meet the interest accruing on the bonds held by your orator as trustee for the said bondholders, and to eventually liquidate and pay said bonds; that in order to do this it is now necessary for the street railway company to lay down double tracks upon other streets and avenues of the city of Meridian, and over Eighth street in said city of Meridian, which street leads from the business portion of the said city through one of the most thickly settled resident portions of said city, and over which said street there has been for a long time-- 15 or 20 years-- a street car line, which has been constantly operated; that there is now and has been for a long time a single track operated by the present street railway company; and that the said street railway company, in order to meet the public demands, has placed also in said Eighth street, at different places therein, diamond switches or double tracks, which have been used by it for a long space of time in order to enable it to run its cars to meet the demands of the schedules which have been fixed at every 15 minutes during the hours when said cars are in operation.'

Also:

'Your orator further charges the fact to be that its mortgage and bonds are and will continue to be greatly impaired if the said street railway, because of the threats of the various suits against it by the abutting property owners on Eighth street, declines or fails to perform its duty to the public and to carry out the charter purposes by laying double tracks along and over the said Eighth street.'

Also:

'That a failure on said street...

To continue reading

Request your trial
3 cases
  • Mahon v. Guaranty Trust & Safe Deposit Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 2, 1917
    ...... from the Indianapolis Street Railway Company, all of which it. operates in the city of Indianapolis. A large number of the. other defendants are its employes, while other defendants ...246; Consolidated. Water Co. v. City of San Diego, 93 F. 849, 35 C.C.A. 631; Williams v. City Bank & Trust Co., 186 F. 419,. 108 C.C.A. 341; Old Colony Trust Co. v. Atlanta Ry. Co. ......
  • Hall v. Meridian Light & Ry. Co.
    • United States
    • United States State Supreme Court of Mississippi
    • November 5, 1917
    ...the order granting an injunction pendente lite, which is the subject of this appeal, was improvidently or erroneously granted." 186 F. 419, 108 C. C. A. 341. substance of the complaint in this case, as I see it, is about as follows: That appellants, the plaintiffs in the court below, are th......
  • Ramjak v. Austro-American S.S. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1911
    ...... appliances. On reaching the city of New Orleans, he was. refused admission to the country by the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT