Alexander v. Special School Dist. of Booneville, 12353.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: STONE, SANBORN, and RIDDICK, Circuit
• Citation: 132 F.2d 355
• Parties: ALEXANDER v. SPECIAL SCHOOL DISTRICT OF BOONEVILLE, LOGAN COUNTY, ARK.
• Docket Number: No. 12353.,12353.
• Decision Date: 08 January 1943

132 F.2d 355 (1943)

ALEXANDER
v.
SPECIAL SCHOOL DISTRICT OF BOONEVILLE, LOGAN COUNTY, ARK.

No. 12353.

Circuit Court of Appeals, Eighth Circuit.

January 8, 1943.

S. L. White, of Little Rock, Ark., for appellant.

Charles I. Evans, of Booneville, Ark., for appellee.

Before STONE, SANBORN, and RIDDICK, Circuit Judges.

STONE, Circuit Judge.

This is an appeal from an order of March 6, 1942, denying a motion "to correct judgment and decree" entered February 23, 1937. Appellee presents a motion to dismiss the appeal because not taken in time nor taken from an appealable order. We think this motion should be sustained on the second ground. Therefore, we examine the case only in so far as necessary to dispose of that motion. This appeal was taken within time after the order of March 6, 1942. But the contention, as to time, is that the motion and order thereon of March 6, 1942, were merely repetitions of the substance of what was determined by an earlier order of January 15, 1942; that the matter determined in both orders and presented on this appeal was the same, to-wit, modification of the

132 F.2d 356

decree of February 23, 1937; and that no appeal was taken, within time or at all, from the order of January 15, 1942, so that the appellant is really seeking to present only the merits of the January 15, 1942, order in an appeal from the order of March 6, 1942. The contention as to the order appealed from not being an appealable order is that the order appealed was simply to vacate the earlier order refusing to vacate or amend the decree and the matters sought to be presented are solely those determined under the earlier order from which no appeal was taken

Appellee is a school district in Arkansas. Prior to 1937, it had issued three separate bond issues which were outstanding. The interest upon the bonds coming in default, the trustee of one issue brought suit and the trustee of another issue intervened seeking similar relief. Shortly after filing of this action, an order was entered requiring the District to pay to the County Treasurer a certain percentage of its income to be there impounded for disposition on further order of the Court. These impoundments are the funds affected by the consent decree entered later and are the available funds referred to later in this opinion. Following various proceedings and negotiations the parties joined in a consent decree, drawn by counsel for appellant, which is the above decree entered February 23, 1937. In general, this decree provided for refunding the indebtedness (represented by these two bond issues) by exchange of new bonds for these two outstanding issues; and by making provision for payment (from the impounded money) of court costs, attorney fees, refunding expenses and certain interest. The interest payments were expressly to follow payment of the other items. The statement in the decree concerning interest payments was as follows: "after these disbursements have been provided for, the paying agent shall next set aside the funds necessary to pay the interest due April 1, 1937, on the refunding bonds; the balance of the money received by the paying agent shall forthwith be disbursed in payment of interest due on the outstanding bonds prior to April 1, 1936, the date of the refunding bonds, etc., paying the oldest outstanding interest items first."

The decree was carried out by exchange of the bonds and payment of the above costs, fees and expenses. The remaining money of the District was fully applied to payment of back interest resulting in about 25% payment of the back interest up to April 1, 1936, on the two issues in suit. For the remaining 75% of such interest, the disbursing agent issued so-called "escrow receipts" to each bondholder.

After all of the above had occurred, the plaintiff in the above action filed a motion on September 29, 1941. This motion set forth that the above decree provided for payment in full of interest on the old bonds up to April 1, 1936; that, "due to a miscalculation", the District did not have or failed to deposit with the disbursing agent sufficient to pay this interest in full, so that the agent was unable to make this payment in full; that the agent prorated the available funds, amounting to 25% of such interest, and issued "escrow receipts" for the remaining 75%; that certain named persons were holders of such "receipts" in a total of $3,056.25; that the agent has requested the District to deposit sufficient funds to pay this interest but it has not done so and refuses to pay the interest "covered by said `escrow receipts'"; that "the owners and holders of said `escrow receipts' are...