Vicksburg, S. & P. Ry. Co. v. Schaff

• Decision Date: 02 April 1925
• Docket Number: No. 4187.,4187.
• Parties: VICKSBURG, S. & P. RY. CO. v. SCHAFF et al.
• Court: U.S. Court of Appeals — Fifth Circuit

5 F.2d 610 (1925)

VICKSBURG, S. & P. RY. CO. v. SCHAFF et al.

No. 4187.

Circuit Court of Appeals, Fifth Circuit.

April 2, 1925.

J. Blanc Monroe, Monte M. Lemann, and Manning W. Heard, all of New Orleans, La. (Monroe & Lemann, of New Orleans, La., on the brief), for appellant.

R. E. Milling, of New Orleans, La., and Alexander H. McKnight, of Dallas, Tex. (Joseph M. Bryson, of St. Louis, Mo., and Chas. C. Huff, of Dallas, Tex., on the brief), for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, the Vicksburg, Shreveport & Pacific Railway Company, hereafter referred to as intervener, is the owner of a line of railroad running from the Louisiana-Texas line at Waskom, Tex., to Shreveport, La., with the usual appurtenances, and terminal facilities at Shreveport. In 1899 the railroad, with terminal facilities, etc., was leased to the Sherman, Shreveport & Southern Railroad Company by three separate contracts denominated joint track lease, terminal contract, and traffic agreement; the said railroad company agreeing to pay all expenses of maintenance of the said track. These contracts were subsequently transferred to the Missouri, Kansas & Texas Railroad Company of Texas. In September, 1915, a receiver was appointed to the Missouri, Kansas & Texas Railroad Company by the District Court for the Northern District of Texas, and the receiver took over the property covered by the said contracts with intervener and continued to operate it as part of the railroad under receivership. In September, 1922, the entire property of the Missouri, Kansas & Texas Railroad Company was sold under decree of the court. The order of sale contemplated the transfer of the three contracts above referred to, with the proviso that the purchaser might have one year in which to decide whether he would retain the contracts or not. The sale was made to one Greenman, representing William Edenborn. Before the deed issued, intervener filed a petition in the receivership proceedings against the receiver and Edenborn, setting up that it had not been made a party to the cause; had received no notice of the proposed sale; that the contracts sought to be transferred by the order of sale and subsequent deed were not assignable to the purchaser; and that the receiver was indebted to the intervener in the sum of $50,000 for under maintenance of the railroad, for which intervener was entitled to a privilege on the funds in the hands of the receiver and to priority of payment. The prayer was for leave to intervene, that the contracts be decreed nontransferable, for a return of the property, for a judgment for $50,000 to be paid by preference out of any funds in the receiver's hands, and for postponement of the confirmation of the sale pending a decree on the intervention.

The District Court entered an order on the petition allowing the filing of the intervention and ordering service on the receiver and Edenborn. Edenborn answered, declined the contracts, and tendered the property back to the intervener...