Chicago v. Fosdick

Decision Date23 October 1882
Citation106 U.S. 47,1 S.Ct. 10,27 L.Ed. 47
PartiesCHICAGO, D. & V. R. Co. and others v. FOSDICK and others
CourtU.S. Supreme Court

[Syllabus on pages 47-48 intentionally omitted.]

E. Walker, for appellants.

Henry Crawford, Melville W. Fuller, and Lawrence, Campbell & Lawrence, for appellees.

MATTHEWS, J.

[Opinion of the Court on Pages 49-81 intentionally omitted]

Page 82

MATTHEWS, J.

This appeal was heard during the last term with the appeal from the decree of foreclosure and sale in the same case, having been taken from three decrees rendered after the sale in the same suit. Huidekoper, Shannon, and Denison, the purchasers of the mortgaged property sold under the decree of foreclosure, who are appellees in this appeal, were not parties to the former appeal. All the decrees appealed from, including those now in question, were included in the order of reversal made at the former hearing; but on a petition for rehearing, it was called to the attention of the court that the transcript of the record was imperfect and incomplete, having omitted the decree confirming the sale, and that the petition for the present appeal contained a misrecital, that the decree entered April 12, 1877, was the decree 'confirming the report of the sale of the property of the defendant railroad company.' The order of reversal was, therefore, set aside as to the decrees embraced in the present appeal, and a rehearing granted. The cause, on that rehearing, has now been heard at the present term upon the whole record, as amended and perfected. From that it now appears that on February 17, 1877, the master filed his report of the sale, and the purchasers, their petition for its confirmation and for other relief, and it was on that day, on motion of the complainants' solicitors, ordered that the

Page 83

report and sale be confirmed, unless objections thereto should be filed on or before the Friday next following, for which day it was set for hearing. And exceptions having been in the mean time filed by one Slaughter, on February 26, 1877, the court overruled the exceptions, and, as the order reads, 'does in all things confirm the sale' to the purchasers. From this decree an appeal was prayed by Slaughter, but was not perfected or prosecuted. The petition of the purchasers, filed February 17, 1877, in which they also asked for the immediate discharge and payment of their bid, had been referred to the master, whose report subsequently filed was confirmed by the decretal order of April 12, 1877, by which he was directed, on the surrender to him of 2,328 first-mortgage Illinois Division bonds of the defendant railroad company, to execute and deliver to the purchasers a deed of the property sold, and thereupon the receiver was directed to let them into possession. On April 16, 1877, the master having reported the execution of the decree of April 12th by the delivery of the deed and the acceptance of the bonds, a further decree was entered approving and confirming the same. These are the two decrees first named in the prayer for the present appeal.

It is now contended by the appellees that these decrees are merely orders in execution of the previous decrees of the court; are, therefore, not final in the sense necessary to authorize an appeal; and that consequently, as to them the present appeal must be dismissed for want of jurisdiction.

But according to the rule sanctioned and adopted in Forgay v. Conrad, 6 How. 201, and Blossom v. Railroad Co. 1 Wall. 657, an appeal will lie from such decrees, according to the nature of their subjectmatter and the rights of the parties affected.

In the present case the decree of April 12, 1877, in effect, distributes the proceeds of the sale upon the basis of the finding and...

To continue reading

Request your trial
100 cases
  • Moshannon Nat. Bank v. Iron Mountain Ranch Co.
    • United States
    • United States State Supreme Court of Wyoming
    • January 24, 1933
    ...Co., (N. Y.) 29 N.E. 801; McClelland v. R. R. Co., (N. Y.) 18 N.E. 237; Seibert v. Minneapolis Ry. Co., (Minn.) 53 N.W. 1134; R. R. Co. v. Fosdick, 106 U.S. 47, 76; Crossthwaite v. Moline Plow Co., 298 F. Allan v. Moline Plow Co., 14 F.2d 912; Muren v. Mining Co. (Mo.) 160 S.W. 835; Bank v.......
  • Union Central Life Insurance Company v. Caldwell
    • United States
    • Supreme Court of Arkansas
    • July 21, 1900
    ...evidence of the amount due. 1 Dan. Neg. Inst. § 71. The facts in this case make out a clear case of attempted enforcement of a forfeiture. 106 U.S. 47; Pa.Ch. 179; 36 Mich. 160, 169. Jesse Turner, for appellant, in reply. There was a breach of the condition in the collateral note, by non-pa......
  • Chapman v. Schiller
    • United States
    • Supreme Court of Utah
    • September 27, 1938
    ...... 1927 to secure the payment of bonds. The first deed of trust. ran to Harris Trust & Savings Bank of Chicago, Illinois, as. trustee, and secured an authorized bond issue of $ 2,000,000. of 25 year 5% first mortgage bonds, due February 1, 1934. Of. these ... bondholders similarly situated and protect the interest of. the others, the same as the trustee must do. Chicago D. &. V. R. Co. v. Fosdick , 106 U.S. 47, 1 S.Ct. 10,. 27 L.Ed. 47, 27 L.Ed. 59, 27 L.Ed. 64; Morgan's R. &. S. S. Co. v. Texas Cent. R. Co. , 137 U.S. 171,. 11 S.Ct. 61, ......
  • Rumsey v. Peoples Railway Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 20, 1900
    ...Woltz v. Parker, 134 Mo. 458; Philips v. Bailey, 62 Mo. 639; Whelan v. Riley, 61 Mo. 565; Railroad v. Sprague, 103 U.S. 756; Railroad v. Fosdick, 106 U.S. 75. (2) order appointing the receiver in this case was void, and the decree is erroneous in appropriating the income and earnings of the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT