Mercantile Trust Co. v. Pittsburgh & W R. Co.

• Decision Date: 14 February 1887
• Citation: 29 F. 732
• Parties: MERCANTILE TRUST CO. v. PITTSBURGH & W.R. CO.
• Court: U.S. District Court — Western District of Pennsylvania

29 F. 732

MERCANTILE TRUST CO. v. PITTSBURGH & W.R. CO.

United States Circuit Court, W.D. Pennsylvania.

February 14, 1887

John S Ferguson and James T. Buchanan, for exceptions ex parte petitioner.

Johns McCleave, for exceptions ex parte receivers.

ACHESON J.

1. The appointment by this court of the receivers did not oust the jurisdiction which the court of common pleas had previously acquired of the proceedings against the railroad company instituted by the petitioner for the ascertainment of his damages, nor did it operate as a stay thereof. Neither was the petitioner bound to bring in the receivers as defendants, as he was seeking no relief against them. It was their business to intervene, and take defense, if they wished to do so. High Rec. Secs. 258-260; Tracy v. First Nat. Bank, 37 N.Y. 523. The master was therefore correct in his determination that the petitioner's rights as a judgment creditor are not to be denied recognition simply because he proceeded in the prosecution of his suit without making the receivers parties, or notice to them, and without leave of this court.

2. We concur with the master that it is not open to the receivers or to the mortgage creditors, in a collateral way, to question the jurisdiction of the court of common pleas on the ground that the trestle-work built on the street in front of the petitioner's property, and by reason of the construction of which his damages arose, was not an 'embankment,' within the meaning of section 10 of the act of February 19, 1849, (Purd. 1423, pl. 47,) and therefore that the proceedings in the court of common pleas were unauthorized by that act. It was for the court of common pleas to determine whether the trestle-work was such an embankment. The conclusion of that court upon that question presumably was right; but, whether so or not, it is not impeachable collaterally. It may be added that, if the petitioner's case was not embraced by the act of 1849, then, under the ruling in Pennsylvania R. Co. v. Duncan, 111 Pa.St. 352, 5 Atl.Rep. 742, his damages were recoverable in a common-law action. The subject-matter of the claim being thus within the general jurisdiction of the court, it follows that, if any mistake was made, it was, at most, in the mere form of procedure. In any view, however, the tribunal for the rectification of the supposed error is the supreme court of Pennsylvania. Standing in full force, the judgment must be treated here as conclusive.

3. This brings us to the consideration of the question whether the petitioner's claim is of such a kind or nature as to be entitled to payment out of the funds in the hands of the receivers in preference to the claims of the mortgage creditors. The learned master held that it was not. From this conclusion we are constrained to dissent. It is true that no part of the petitioner's lot of ground was appropriated by the railroad company, and, in view of the decision in Allegheny City v. Moorehead, 80...