Continental & Commercial Trust & Savings Bank v. North Platte Valley Irr. Co.

• Citation: 237 F. 188
• Decision Date: 04 November 1916
• Docket Number: 4647.
• Parties: CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK et al. v. NORTH PLATTE VALLEY IRR. CO. et al. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

237 F. 188

CONTINENTAL & COMMERCIAL TRUST & SAVINGS BANK et al. v. NORTH PLATTE VALLEY IRR. CO. et al. ^[1]

No. 4647.

United States Court of Appeals, Eighth Circuit.

November 4, 1916

Eldon Bisbee, of New York City (Charles L. Powell and Levy Mayer both of Chicago, Ill., and William C. Kinkead, of Cheyenne Wyo., on the brief), for appellants.

Ernest Morris, of Denver, Colo. (Wm. W. Grant, Jr., of Denver Colo., on the brief), for appellees.

Before CARLAND, Circuit Judge, and TRIEBER and VAN VALKENBURGH District Judges.

CARLAND Circuit Judge.

This case was before us at a former term-- 219 F. 438, 135 C.C.A. 150--and a reference to the opinion on that appeal is made for a more particular statement of the case. Then, as now, the contest was, and is, between certain mechanics' lien claimants and bondholders secured by a first mortgage. On the former appeal this court, after establishing certain liens for labor and material furnished, modified the decree of the lower court, and in its mandate directed that a hearing be had to determine the value of the property subject to the lien of the mortgage and the liens of the materialmen. It was directed:

'That at this hearing the value of the property on which the several mechanic's lien holders have a priority, should be ascertained as well as the total value of all the remaining property subject to the mortgage. * * * And the proceeds of the sale, after paying the necessary costs and expenses of administering the receivership and other prior charges, should be divided among the bondholders and the mechanic's lien claimants in the same proportion as the value of the property upon which the lien claimants have a superior lien considered as a part of the whole system bears to the total value of the mortgaged property, diminished by the value of the property subject to the superior lien.'

The court on the former appeal desired on the one hand to avoid compelling the mechanic's lien claimants to sell and remove the structures on which they had a superior lien as permitted by the law of Wyoming (R.S. 1887, Secs. 1519, 1523; R.S. 1899, Sec. 2891), as it appeared that this would give the lien claimants the mere wrecking value of the structures and on the other hand the court wished to avoid compelling the bondholders to pay the amount of the mechanics' liens in full when they, the bondholders, had already lost about 85 per cent. of their investment. By our former decision and under the laws of Wyoming the mechanics' liens were only superior to the lien of the mortgage as to the structures for the building of which the liens were claimed. While by our former decision we extended the mechanics' liens to the hydro-electric system, pursuant to what we thought was the law of Wyoming, we did not decide that the liens of the mechanics were superior to the mortgage lien upon that system. In...