In re Equitable Trust Co. of New York
Decision Date | 15 May 1916 |
Docket Number | 2781. |
Citation | 232 F. 836 |
Parties | In re EQUITABLE TRUST CO. OF NEW YORK. |
Court | U.S. Court of Appeals — Ninth Circuit |
Murray Prentice & Howland, of New York City, and Jared How, of San Francisco, Cal., for petitioner.
Garret W. McEnerney and John S. Partridge, both of San Francisco Cal., for respondents.
Byrne & Cutcheon, of New York City, and Charles S. Wheeler and John F. Bowie, both of San Francisco, Cal., amici curiae.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
March 6, 1916, was the first day of the March term of the District Court for the Northern District of California, Second Division, over which Hon. William C. Van Fleet presides. Fifteen days before that, to wit, on the 21st of February 1916, he had made an order directing that the Denver & Rio Grande Railroad Company and the Missouri Pacific Railroad Company be made parties defendant to and respectively interplead in a suit theretofore brought in said court by the Equitable Trust Company of New York, as trustee, against the Western Pacific Railway Company, to foreclose a first mortgage given by the latter company to the trust company to secure a bond issue of $50,000,000, and also enjoining the trust company from proceeding with a certain dependent suit it had theretofore brought in the state of New York in respect to some of the property covered by the mortgage.
Claiming that the order directing the making of the Denver & Rio Grande Company and Missouri Pacific Company parties to the suit and the injunctive order were beyond the power of the court to make, and were therefore void, the complainant in the suit, based upon a stipulation of all of the parties thereto purporting to authorize such course, moved the court on the 6th day of March, 1916, for the immediate entry of a decree in the cause in the terms of a form annexed to the stipulation, and, in the event of a denial of such immediate entry, that the cause be set for hearing and for entry of the decree at such early day as the court should assign; Mr. How, the attorney for the complainant, saying, among other things:
Four days thereafter, and while the motion was pending, to wit, March 10, 1916, the Equitable Trust Company appealed to this court from the injunctive part of the order of the District Court above referred to, and also applied to this court for a writ of prohibition to prevent the District Court from compelling the Denver & Rio Grande Railroad Company and the Missouri Pacific Railroad Company to interplead in the foreclosure suit, and also for a writ of mandamus directing the District Court to grant the motion of the complainant made to that court for the entry of a decree in the foreclosure suit in accordance with the stipulation referred to.
The records show that during the proceedings had before the District Court Judge Van Fleet became apprised of the applications that had been made to this court, postponed from time to time action upon the pending motion before him for the entry of a decree, and awaited the action of this court upon the applications made to it, and in the course of the discussion of the application so made to him for the immediate entry of a decree said, among other things:
During the pendency of the applications to this court, and during the pendency of the motion made by the Trust Company to Judge Van Fleet on the 6th of March, 1916, for the immediate entry of a decree, to wit, on the 13th day of March, 1916, the Savings Union Bank & Trust Company of San Francisco, as the owner of 125 of the first mortgage bonds of the Western Pacific road and as the representative of the holders of 575 additional of the first mortgage bonds, filed in the District Court a petition in intervention, praying, among other things, that before the sale of any of the properties of the Western Pacific Company be ordered evidence be taken with respect to the value of the properties of that company, and an upset price be fixed below which the commissioner making the sale be not permitted to receive a bid therefor, which upset price be high enough to properly protect the interest of the interveners and of first mortgage bondholders not parties to the plan of reorganization set forth in the opinion of this court handed down at 2 p.m. of the 29th day of March, 1916, after full hearing and consideration of the applications made to it. In the course of that opinion we held:
And summarizing the principal points involved we held and decided that:
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