City of New Orleans v. Peake

• Decision Date: 23 June 1892
• Docket Number: 46.
• Citation: 52 F. 74
• Parties: CITY OF NEW ORLEANS v. PEAKE.
• Court: U.S. Court of Appeals — Fifth Circuit

52 F. 74

CITY OF NEW ORLEANS v. PEAKE.

No. 46.

United States Court of Appeals, Fifth Circuit.

June 23, 1892

E. A O'Sullivan and Henry Renshaw, for appellant.

Richard De Gray and Chas. Louque, for appellee.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.

PARDEE Circuit Judge.

The appellee, a large judgment creditor of the drainage fund held in trust by the city of New Orleans, filed his bill in the circuit court to close and liquidate the trust. After proceedings had thereon, a receiver was appointed, who caused an inventory of the property and assets of the fund to be made, and filed in the record. The court afterwards compelled the city of New Orleans to make a regular notarial transfer of these assets to the receiver. Thereafter the receiver applied to the court as follows:

'The petition of J. W. Gurley, receiver, in the case of James W. Peake v. The City of New Orleans, No. 12,008, with respect shows: 'That an act of transfer and assignment, executed in conformity to the orders of this honorable court, of dates 13th June, 1891, and December 5, 1891, and December 31, 1891, by the defendant the city of New Orleans, of the property involved in this cause, is now on file, together with an inventory of the property transferred, made by Jos. D. Taylor, notary public; that it is necessary, in the interest of all parties, that said property be sold, and the proceeds thereof be brought into court to abide its further order wherefore he prays for an order directing him to sell the said property at public auction, after due advertisement, for cash, and authorizing and empowering him to execute and deliver to the purchasers thereof good and sufficient titles, free from all liens, mortgages, and incumbrances, at the expense of such purchasers, if any."

And thereupon the following order was granted:

'Let the receiver sell the property contained in the said inventory, as prayed for, after advertisement in two newspapers, published in the city of New Orleans, viz., one published in the English and one in the French, for the term required by law for judicial sales of real estate at public auction, to the highest bidder for cash; and let the receiver be authorized and empowered to execute and deliver to the purchasers good and valid titles, free from all liens, mortgages, or incumbrances, if any there are.

(Signed)

'EDWARD C. BILLINGS, Judge.'

In accordance with the order thus obtained, the receiver advertised for sale and made sale of a large portion of the lands embraced in the inventory. After the sale the receiver made full report, showing, among other things, what he had sold, and the prices received for the different lots. The aggregate receipts for all the lots sold were $3,380. Upon this report the court ordered that the same be filed, and noted of record; and, further, that, if no opposition to the confirmation of said report of sales be made within eight days from the filing of said report, the same be and stand confirmed, and that the receiver proceed to give title to the purchasers. Thereupon the city of New Orleans filed an opposition to the report of the receiver, setting forth the grounds of objection at length. After hearing evidence the court confirmed the sale, except as to one square of ground, on which the Dublin street draining machine is located. From this decree the city appealed.

In this court the motion is made to dismiss the appeal, on the grounds:

'(1) That the judgment appealed from is not a final judgment under section 6 of the laws of congress establishing the circuit courts of appeal, approved March 3, 1891. That no appeal lies to this court, except from a final judgment. (2) That the city of New Orleans shows no interest to appeal, inasmuch as she divested herself of all interest in the property sold by the act of transfer executed by her before J. D. Taylor, notary

...