Louisville St Co v. Wilson

Decision Date02 March 1891
Citation34 L.Ed. 1023,11 S.Ct. 405,138 U.S. 501
PartiesLOUISVILLE, E. & ST. L. R. CO. v. WILSON
CourtU.S. Supreme Court

[Statement of Case from pages 501-503 intentionally omitted] Alex. P. Humphrey, for appellant.

Bluford Wilson and W. S. Opdyke, for appellee.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

We think the appeal was properly taken. At the time the order of August 10th was entered the receiver was not in possession; he had surrendered the property more than nine months prior thereto. When he surrendered the property, he closed up his receivership. A decree against him was not personal, but official. It was not the contemplation of the court that any personal liability should be cast upon him. He not only had no railroad funds or property in his possession, out of which to pay this allowance, but he had no right to retake that which he had surrendered. The reservation made in the order entered in the Indiana court, of the right of the court to retake possession of the property surrendered, conferred no rights on the receiver; it was simply a reservation to the court, which might, under that reservation, by the old or a new receiver, at any time retake possession when its allowances within the scope of the order of surrender were not paid. So, the order of August 10th was a mistake. It neither bound the appellant nor the property which it had received. It was not a purchaser of the railroad property, and did not become, until August 29th, a party to the record in the Illinois court. It is true that, on August 29th, the circuit judge, directing the entry in the Illinois court of the order made nearly a year before in the Indiana court, directed that it should be entered as of October 8, 1886, the date of its entry in the Indiana circuit court; but such nunc pro tunc entry, while proper for the protection of the receiver, could not antedate the subjection of the new corporation to the orders and decrees of the Illinois circuit court. It could justly say that it was not a party to the proceedings in that court until the entry of August 29, 1887. There was no misunderstanding, no misrepresentation, no deceit, in these matters. Immediately, on the* entry of this order of August 29th, a transcript of the order from the Indiana circuit court, a new decree in favor of the intervenor, was entered,—a decree for the first time binding the appellant. This was notan order in execution, merely, of the former decree, such as those noticed in the case of Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 10 Sup. Ct. Rep. 736, but it was the first order against and binding the appellant. We are therefore compelled to notice the merits of this allowance.

The allowance to the appellant was for three matters. He does not sue for services as general counsel of the mortgagor company, or for salary as an officer of that company. With respect to the provision in the order of appointment, he claims to come under the descriptive words therein used, 'wages of employes.' If that fails him, then he appeals to the general equity powers of the court to compensate him as one whose services were beneficial to the security holders. On the meaning of the words 'wages of employes,' he cites the case of Gurney v. Railway Co., 58 N. Y. 358, in which an order directing the receiver of a railway company, thereby appointed, to pay debts 'owing to the laborers and employes,' for labor and services, was held broad enough to include a debt due to Hon. Jeremiah S. Black, for professional services as counsel. Without criticising that decision, or noticing the special circumstances which seemed in the judgment of that court to justify the inclusion of professional services within the descriptive words of the appointment, we are of the opinion that the term 'wages of employes,' as used in the order now under consideration, does not include the services of counsel employed for special purposes. Vane v. Newcombe, 132 U. S. 220, 237, 10 Sup. Ct. Rep. 60.

The terms 'officers' and 'employes' both alike refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer nor an employe. They imply continuity of service, and exclude those employed for a special and single transaction. An attorney of an individual, retained for a single suit, is not his employe. It is true, he has engaged to render services; but his engagement is rather that of a contractor than that of an employe. The services of appellee, therefore, did not come within the order appointing the receiver. We would not be understood as asserting, even by implication, that the terms of an order of appointment of a receiver vest in all claimants an absolute right as against the security holders. Such terms may be, and doubtless are, a protection to the receiver; and what he does and pays within those terms may be, thereafter, beyond the challenge of any party interested in the property. But when he has not acted, and the question is presented to the court as to the liability of the property for any claim, the court is not foreclosed by the order of appointment, but may consider and determine equitably the extent of liability of the property to such claim, and what its rights of priority may be. Hence, as the receiver did not pay this claim, the parties in interest may rightfully challenge its priority, even if it were within the...

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