Cabaniss v. Reco Min. Co., 1,164.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 116 F. 318
• Docket Number: 1,164.
• Parties: CABANISS et al. v. RECO MIN. CO. et al.
• Decision Date: 31 May 1902

116 F. 318

CABANISS et al.
v.
RECO MIN. CO. et al.

No. 1,164.

United States Court of Appeals, Fifth Circuit.

May 31, 1902

[116 F. 319]

C. A. Turner (B. M. Davis, Geo. S. Jones, John I. Hall, and Olin J. Wimberly, on the brief), for appellants.

Minter Wimberly and Alexander Akerman (Jesse C. Harris, on the brief), for appellees.

Appeal from the Circuit Court of the United States for the Southern District of Georgia.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM.

Cabaniss and others, as the trustees of the Roger & Joiner Commission Company, brought a suit at law against the Reco Mining Company in the court below, and soon thereafter three bills in equity were filed in the same court, which relate to the action at law. The three equity cases were consolidated, and the court granted the prayers of the several bills by appointing Leon S. Dure receiver of the property of the Rogers & Joiner Commission Company, and of all the property of Rogers and Joiner individually which they had placed in the hands of the trustees, and of all the assets of the Reco Mining Company, and of all the books and documentary evidence relating to the business of the parties. A motion was made to discharge the receiver, which was refused, and the receiver continued [116 F. 320] in office. From the order appointing a receiver and from the order continuing him in office as receiver this appeal was taken by Cabaniss and others (trustees) and D. C. Joiner under the act of June 6, 1900 (31 Stat. 660). There are several assignments of error which aver that the court erred in the order appointing a receiver. Although this appeal is taken from an interlocutory order, it brings before us the question of the equity of the bills on which the decree is based, and we may, if the pleadings justify it, either enter or direct a final decree, dismissing the bill. Smith v. Iron Works, 165 U.S. 518, 17 Sup.Ct. 407, 41 L.Ed. 810.

The Action at Law: The litigation in the court below was begun by an action at law. It was brought by Cabaniss and others, trustees of the Rogers & Joiner Commission Company, all citizens of the state of Georgia, against the Reco Mining Company, a corporation organized under and pursuant to the laws of the state of New Jersey, for the sum of $2,082.92, alleged to be due on an account. The account was due to the Rogers & Joiner Commission Company, and had been transferred and assigned by deed of trust which conveyed all of the assets of the company to the trustees, plaintiffs in the suit at law. An attachment was sued out in the case and levied on property of the Reco Mining Company. That case is pending on the law docket of the court below. We refer to it fully, because it is the subject more or less of the several bills in equity involved in this appeal.

The First Bill in Equity: The Reco Mining Company filed its bill against the Rogers & Joiner Commission Company, and J. W. Cabaniss and others, trustees of that company, and John M. Barnes, United States marshal. The purpose of the bill, as shown by its averments and prayers, is to enjoin the further prosecution of the suit at law; to have a receiver appointed to take charge of all the property of the Rogers & Joiner Commission Company, and the property of that company held by the trustees, and to administer the same; and for an order to allow the complainants to operate their mine, which it is averred had been closed by the levy of the attachment. The bill describes the suit at law, and it is claimed that it should be enjoined, and that the complainants should have relief in equity on grounds which are stated in the sixth, seventh, and eighth paragraphs of the bill, as follows:

'Humbly complaining, your orator shows that on the 27th day of January, 1902, R. Morrison Rogers, president of the Reco Mining Co., your orator, made and executed three certain promissory notes made payable to Rogers & Joiner Commission Co., signed by R. M. Rogers, president of the Reco Mining Co., as follows: One note due March 28, 1902, for $2,000 one note due April 20, 1902, for $4,000; one note due May 27, 1902 for $4,000,-- which said notes were indorsed by the Rogers & Joiner Commission Co., of New York City. And your orator avers and charges that said Rogers & Joiner Commission Co. received the proceeds of said notes and used the same in their business; that there was no consideration whatever moving your orator to sign said notes, save and except the desire to accommodate the Rogers & Joiner Commission Co., and your orator received no consideration whatever for signing said notes; that all the money realized from the sale or discount of said notes with the Mercantile National Bank was received by the Rogers &amp Joiner Commission Co., and your orator charges and [116 F. 321] avers that the Rogers & Joiner Commission Co., realizing this fact, credited y our orator upon their books with the proceeds of said notes, whereby it appears upon the books of the

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