Chicago, R.I. & P. Ry. Co. v. Lincoln Horse & Mule Commission Co.

• Decision Date: 09 October 1922
• Docket Number: 5746.
• Parties: CHICAGO, R.I. & P. RY. CO. v. LINCOLN HORSE & MULE COMMISSION CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 955

CHICAGO, R.I. & P. RY. CO. v. LINCOLN HORSE & MULE COMMISSION CO. et al.

No. 5746.

United States Court of Appeals, Eighth Circuit.

October 9, 1922

Guy C Chambers, of Lincoln, Neb. (E. P. Holmes, of Lincoln, Neb on the brief), for appellant.

Wilmer B. Comstock, of Lincoln, Neb., for appellees.

Before SANBORN and LEWIS, Circuit Judges.

SANBORN Circuit Judge.

This is an appeal of the Chicago, Rock Island & Pacific Railway Company from a decree of dismissal of its complaint against the Lincoln Horse & Mule Commission Company for an injunction, on the ground that the complaint did not state facts sufficient to constitute a cause of action. That complaint and exhibits attached to it alleged the facts with reference to the suits, the proceedings, and decrees in American Steel Foundries against the railway company and Bankers' Trust Company as trustee, against the railway company, which are recited in the statement and opinion of this court in Joseph Phipps et al. against the railway company, which is filed herewith. 284 F. 945. Reference is made to that statement and opinion for a more extended statement of those facts. In addition to the facts there stated, the complaint in this case contains averments that on April 22, 1915, there was filed in the United States District Court for the District of Nebraska a certified copy of the ancillary proceedings in the creditors' suit against the railway company in the United States District Court for the Western District of Missouri; that the receiver appointed by the District Court of the Northern District of Illinois in those suits had the exclusive possession and control and operated all the property of the railway company from April 20, 1915, until June 24, 1917, when, pursuant to that court's final decree that property was delivered back to the railway company; that on February 22, 1915, the Lincoln Horse & Mule Commission company, a copartnership, hereafter called the defendants, brought an action against the railway company for damages to a shipment of horses, and on September 26, 1917, they recovered a judgment against it for $1,000 in the District Court of Lancaster County in the state of Nebraska; that notice of the order of the District Court of the Northern District of Illinois of February 10, 1917, which required all those having claims against the railway company or its property to file them with its special master not later than the 10th of April, 1917, was personally served on one of the defendants and on their attorney prior to April 1 1917; that the defendants were duly notified of the adjudication in the final decree in that court that all persons having claims against the railway company, except mortgage bondholders, not theretofore proved in that court present and file them with the special master on or prior to June 14, 1917, and that each such claim not so filed, unless allowed to be filed by a separate order, be 'barred determined, and held for naught, and barred from participation in any way in any of the property of the defendant railway company,' but the defendants never filed their claim; that the railway company has repeatedly offered and tendered, and still offers and tenders, to the defendants the same proportionate beneficial interests in the reorganized railway company that pursuant to the final decree it has paid or offered to other unsecured creditors, to wit, the 6 per cent. preferred stock of the reorganized company to the amount of their judgment and interest, share for share, but the defendants have refused to accept these offers, and have caused an execution to be issued on their judgment and to be delivered to the proper sheriff, directing him to levy upon, seize, and sell sufficient of the property of the railway company to pay their judgment, interest, and costs...