Andrews v. National Foundry & Pipe Works

• Decision Date: 06 April 1896
• Docket Number: 283.
• Parties: ANDREWS et al. v. NATIONAL FOUNDRY & PIPE WORKS, Limited, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

73 F. 516

ANDREWS et al. v. NATIONAL FOUNDRY & PIPE WORKS, Limited, et al.

No. 283.

United States Court of Appeals, Seventh Circuit.

April 6, 1896

Before WOODS and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

The appellees have joined in a motion to dismiss this appeal on the ground that the decree was not final. The brief in support of the motion contains this statement:

'The bill was filed, alleging, among other things, that the defendants Andrews and Whitcomb were personally liable to the complainant and other creditors for the amount of their claims, upon the ground that they were the owners and holders of stock for which no consideration had been paid. The prayer for relief asked that such stockholders be adjudged to pay the claims of the creditors. The decree entered ascertains and fixes the amount due to both the secured and unsecured creditors, and adjudges that the complainant, National Foundry & Pipe Works, Limited, and the intervener, R. D. Wood & Co., have mechanics' liens upon the property of the Oconto Water Company prior to all other liens, and that they are authorized to proceed to the enforcement of such liens in accordance with the decrees of the court establishing the same. The decree contains the following further provision: 'That said defendants S.D. Andrews, and W. H. Whitcomb, be, and they are hereby ordered and required, and are hereby adjudged, to pay the amounts respectively adjudged due to the above-mentioned unsecured creditors, to wit, Chapman Valve Manufacturing Company, Sherwood, Sutherland & Company, Dickinson Brothers & King, and Cook & Hyde, together with their respective costs, as herein adjudged, and also that said defendants S.D. Andrews and W. H. Whitcomb, be, and they are hereby, ordered and required to pay any deficiency that may be found due to said secured creditors, to wit, the said National Foundry & Pipe Works, Limited, and the said R. D. Wood & Co., if any there shall be after applying to the satisfaction of their said respective mechanic's lien decrees hereinbefore referred to the proceeds of the sales made thereunder; the amount of such deficiency being made to appear to the satisfaction of this court, and an order for such payment entered at the foot of this decree."

The authorities cited in support of the motion are: McGourkey v. Railway Co., 146 U.S. 536, 13 Sup.Ct. 170; Elder v. McClaskey, 17 C.C.A. 251, 70 F. 529, 557; Hohorst v. Packet Co., 148 U.S. 262, 13 Sup.Ct. 590,--distinguishing Hill v. Railroad Co., 140 U.S. 52, 11 Sup.Ct. 690, and approving Montgomery v. Anderson, 21 How. 386.

The brief for the appellees contains the following fuller statement of the decree:

'The case went to hearing upon the pleadings, proofs, and arguments of counsel. The controverted issues raised by the amended pleadings are: First. Whether appellees (the complainant and interveners, R. D. Wood & Co.) had liens upon all of the rights, franchises, and property of the defendant Oconto Water Company and the plant constructed by that company in the city of Oconto, Wis., and, if so, to what extent? Second. Whether, if they had such liens, they were assertable against appellants (Andrews and Whitcomb) who were not parties to the actions in which the decrees were rendered, or as against appellants' interest in the property as purchasers at a sale made under a decree of mortgage foreclosure and sale, and if so, were such liens paramount or subordinate to appellants' interest? Third. Whether appellants were holders of unpaid stock of the defendant Oconto Water Company, and, if so, to what extent? Fourth. Whether there were unsecured creditors of the defendant Oconto Water Company, and, if so, how many and the right amount of the claim of each? Fifth. Whether the bonds of the defendant Oconto Water Company, issued to appellants as collateral security, were void. Sixth. Whether the instruments of mortgage under which appellants claim were made in good faith, and for a valuable consideration, and, if so, whether they were withheld from record by their procurement or with their consent or in fraud of creditors. And, seventh, whether compensation for the services and disbursements of the receiver appointed early in the case by an order subsequently reversed by this court upon appeal, and of his counsel, should be made out of the funds collected by him during his receivership as the rents, issues, and profits of the waterworks plant. All these issues were determined in favor of appellees, except those mentioned in the sixth paragraph above, viz. whether the instruments of mortgage under which appellants claim were made in good faith, and for a valuable consideration, and, if so, whether they were withheld from record by their procurement, or with their consent, or in fraud of creditors, which were determined in favor of appellants. And the

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