Nashville Ry. & Light Co. v. Bunn

• Decision Date: 09 April 1909
• Docket Number: 1,865.
• Citation: 168 F. 862
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: NASHVILLE RY. & LIGHT CO. et al. v. BUNN et al.

168 F. 862

NASHVILLE RY. & LIGHT CO. et al. v. BUNN et al.

No. 1,865.

United States Court of Appeals, Sixth Circuit.

April 09, 1909

R. F Jackson, for plaintiff in error.

Before LURTON and SEVERENS, Circuit Judges, and TAYLER, District judge.

LURTON Circuit Judge.

This is a writ of error to reverse judgments in favor of the defendant in error and against the plaintiffs in error. These judgments were for personal injuries sustained by the defendants in error through the alleged negligent operation of the street railway company by its receiver. The receiver had been appointed under a mortgage foreclosure proceeding and the defendants in error filed interventions claiming damages, and that their claims, under a Tennessee statute were entitled to preference over the mortgage under foreclosure. The negligence charged was denied, as well as any right of preference out of the proceeds of the mortgaged property.

The issues thus made up were referred by the court to H. M. Doak as special master, with directions to take proof and report same, together with his finding of law and fact, to the court. The master, upon the evidence and the law, reported against the plaintiffs in error, awarding to Mary Bunn $8,000, and to J. W. Bunn $1,500, and that these damages were entitled to preferences out of the fund arising under the foreclosure sale. The case is now heard upon a motion to dismiss the writ of error as not the proper proceeding for review of the judgments complained of.

The cause in which the defendants filed their intervening petition was one 'in equity,' as distinguished from an action at law, and the judgments or decrees in that case, whether upon matter involving common-law principles or equity jurisprudence, are judgments or decrees rendered in an equity case. That the subject-matter of the interventions was a tort does not deprive the judgment of its status as a judgment in an equity case, for the character of the principal suit gives color to every judgment and decree pronounced in that case. Having jurisdiction over the property of the railway company through the mortgage foreclosure proceeding and the appointment of a receiver, the Circuit Court drew to itself jurisdiction over all claims against the property in its custody, irrespective of any other ground of federal or equity jurisdiction, and over all suits against its receivers for demands growing out of his operation of the property. This jurisdiction of actions against receivers is in equity, exclusive of all other courts, unless leave to sue in some other court is obtained, and a suit without such permission is a contempt. Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672; McNulta v. Lochridge, 141 U.S. 327, 12 Sup.Ct. 11, 35 L.Ed. 796.

With respect to the exclusiveness of this jurisdiction in suits growing out of the operation by a receiver of the property in his possession, Congress has enacted that such suits may be brought in any court, having jurisdiction otherwise, without leave of the court appointing the receiver. Act March 3, 1887, c. 373, Sec. 3, 24 Stat. 554, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433, 436 (U.S. Comp. St. 1901, p. 582); Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593, 12 Sup.Ct. 905, 36 L.Ed. 829. Thus the defendants in error were at liberty to bring their suit to reduce their claim to a judgment in a state court had bring seen fit, or they might intervene in the foreclosure suit and obtain not only a judgment for damages, but have their status against the fund in the custody of the court determined in a single proceeding. That such an intervention was a proceeding in equity, irrespective of the character of the claim presented, is beyond question. It was within the discretion of the court to have called a jury and submitted to it the question of negligence and damages. Such a practice is well settled. But in that event the verdict of the jury would have been advisory, and might have been disregarded and judgment rendered upon the evidence without regard to the verdict. In re Neasmith, 147 F. 160, 163, 77 C.C.A. 402; 2 Daniell's Chan. Pleading & Pr. (5th Ed.) 1148; Johnson v. Harmon, 94 U.S. 371, 24 L.Ed. 271; Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672; Idaho & Oregon Land Co. v. Bradbury, 132 U.S. 509, 516, 10 Sup.Ct. 177, 33 L.Ed. 433; Kohn v. McNulta, 147 U.S. 238, 13 Sup.Ct. 298, 37 L.Ed. 150; Flippen v. Kimball, 87 F. 258, 31 C.C.A. 282. This is precisely what was done in Kohn v. McNulta and Flippen v. Kimball, cited above, the proceedings being interventions by employes of the court's receiver injured while in his service. So the chancellor may send an issue involving a purely legal question to a court of law to be there tried by a jury. But even in such a case applications for a new trial are not made to the court of law, but must be made to the chancery court, after the proceedings are certified back. Johnson v. Harmon, 94 U.S. 371, 378, 24 L.Ed. 271. Where a verdict has no obligatory effect, as is the case with one in equity, there is no use for a bill of exceptions, except in so far as it may be useful upon a motion for a new trial. Indeed, the issue so submitted to a jury called in an equity case is called a 'feigned issue,' because of its purely advisory character. A court of equity not infrequently finds itself called upon to determine purely legal questions, sometimes arising under the matter of the original bill and sometimes arising upon an intervention. The practice in both is the same. The chancellor may call a jury or may refer the matter to a master or hear it himself. A bill of exceptions for the purpose of reviewing the trial before the jury in a superior court is an anomalous piece of useless lumber.

Manifestly, it follows that the subject-matter of a judgment or decree in a court of equity has no function in determining the method of revising such judgment. It is, after all, nothing more or less than a judgment or decree in an equity case, and can be revised only by the procedure under which judgments and decrees of an equity court are revised.

The plaintiffs in error have resorted to a writ of error. Is it possible that a writ of error will lie to revise a judgment or decree in 'cases in equity'? Aside from a rehearing allowed by the chancellor in his discretion, and the ancient practice under bills of review, there is but one method of revising the judgments and decrees of a court of equity, and that is by an appeal. An appeal is itself a rehearing by a superior court upon fact and law. 2 Daniell's Chan. Pleading & Pr. (5th Ed.) 1459. The distinction between a writ of error, which brings up the record in an action at law for a review of questions of law only, and an appeal, which involves a rehearing upon both the facts and law, is vital. These remedies have their origin and functions in the inherent difference between courts of law and courts of equity,...