In re Equitable Trust Co. of New York

Decision Date15 May 1916
Docket Number2781.
Citation232 F. 836
PartiesIn re EQUITABLE TRUST CO. OF NEW YORK.
CourtU.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 &amp 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.

ROSS Circuit Judge.

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:

'I move the court that this decree be entered forthwith, in the terms of the form attached to the stipulation; in the alternative, if that motion shall be denied, I move that the cause be set for hearing and for the entry of the decree at such early date as the court may assign. The affidavits which I produced before your honor are merely in support of our motion for a hearing at an early day and the entering of a decree at that time. If the court thinks it wants to consider the matter of an upset price, I should think, of course, it ought to be allowed that time, but I wanted to impress upon the court the urgency of the situation.'

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:

'Should the Circuit Court of Appeals, for instance, determine either that this court has no power to bring in the Denver, or that the presence of the Denver here is not essential, there will be no difficulty whatsoever. We can proceed and dispose of this matter in a very short time. * * * If the Court of Appeals shall determine that this court is wrong in its view that contract B must be interpreted here, and may be disposed of like any other piece of physical property that is pledged under a mortgage, there will be no difficulty at all in wiping the slate very clean in a very quick and expeditious way, thus disposing of all the difficulties.'

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:

'That the District Court in its discretion has full power to make an order concerning an upset price upon the sale, if such procedure should be deemed desirable by the court. Of course, hearing may well be accorded to these petitioners and such others as may appear to have any interest in the proceeding for the purpose of aiding the court in ascertaining and determining what the upset price should be.'

And summarizing the principal points involved we held and decided that:

'The trustee, Equitable Trust Company, had a right to proceed to foreclosure as it prayed against the Western Pacific. The Denver Company was not a necessary or proper party to such foreclosure proceedings, and, the Denver Company not being within the jurisdiction of the court and the court having no custody of its property, no order could be made compelling it to interplead in the foreclosure suit. The trustee had a right to begin action against the Denver Company in New York to enforce any rights accruing under contract B to the bondholders, and the District Court in California had no power to interfere with the trustee in proceeding with such action. That part of the order which would compel the Denver Company and the Missouri Pacific Company to become parties to interplead having been in excess of jurisdiction, writ of prohibition is properly invoked.
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4 cases
  • Suarez v. State
    • United States
    • United States State Supreme Court of Florida
    • January 12, 1928
    ...... also, the following cases: United States v. Fricke (D. C.) 261 F. 541; In re Equitable Trust Co. (C. C. A.) 232 F. 836; Conn v. Chadwick, 17 Fla. 428;. Johnston v. Dakan, 9 Cal. ......
  • TENANTS & OWN. IN OP. TO R. v. UNITED STATES DEPT. OF HUD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • February 8, 1972
    ...during the course of a trial. Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); Re Equitable Trust Co., 232 F. 836 (9th Cir. 1916); Chessman v. Teets, 239 F.2d 205 (9th Cir. 1956), vacated on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. Sim......
  • Tumlinson Group Inc v. Johannessen, Case No. 2:09-cv-1089 JFM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 17, 2010
    ...adverse rulings of a judge during the course of a trial. Ex parte American Steel Barrel Co., 230 U.S. 35 (1913); Re Equitable Trust Co., 232 F. 836 (9th Cir. 1916); Chessman v. Teets, 239 F.2d 205 (9th Cir. 1956), vacated on other grounds, 354 U.S. 156. Generally, errors of law created duri......
  • U.S. v. Azhocar, s. 76-3737
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 16, 1978
    ...987, 988 (1945), Cert. denied, 328 U.S. 871, 66 S.Ct. 1364, 90 L.Ed. 1641 Rehearing denied, 329 U.S. 819 (1956); In re Equitable Trust Co., 232 F. 836, 840 (9th Cir. 1916). There is thus no merit to appellant's claim of bias based on adverse C. Statements at bail hearing. In his § 144 affid......

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