Richardson v. Green Nelson v. Same Nelson v. Same Sickles v. Same

• Decision Date: 18 March 1889
• Docket Number: No. 1,074,No. 947,No. 181,No. 1,027,181,947,1,027,1,074
• Citation: 32 L.Ed. 872,130 U.S. 104,9 S.Ct. 443
• Parties: RICHARDSON et al. v. GREEN et al. NELSON et al. v. SAME. NELSON v. SAME. SICKLES et al. v. SAME
• Court: U.S. Supreme Court

130 U.S. 104

9 S.Ct. 443

32 L.Ed. 872

RICHARDSON et al. v. GREEN et al.

No. 181.

NELSON et al.

v. SAME.

No. 947.

NELSON

v. SAME.

No. 1,027.

SICKLES et al.

v. SAME.

No. 1,074.

March 18, 1889.

[Syllabus from 105 intentionally omitted] L. D. Norris, for Richardson & Day, appellants in 181.

D. A. McKnight, for Thomas W. Ferry et al., appellees.

J. Hubley Ashton, Henry T. Dechert, and Henry M. Dechert, for John Bower & Co. et al., appellees.

James Blair and Millard Kingsley, for appellants in 947 and 1027.

T. J. O'Brien, Danl. P. Hays, and Danl.

E. Sickles, for appellants in 1074.

BLATCHFORD, J.

These are five appeals, taken in a suit in equity brought by Ashbel Green and William Bond, trustees, against the Chicago, Saginaw & Canada Railroad Company, in the circuit court of the United States for the Western district of Michigan, for the foreclosure of a mortgage executed to the plaintiffs upon the railroad of that company. The mortgage was given to the plaintiffs, as trustees, to secure 5,500 bonds of $1,000 each, issued by the company, and payable to the plaintiffs or bearer. A decree was made on June 30, 1882, directing a foreclosure and sale, and referring it to a master to determine the priority of those who claimed to be creditors of the company. On the 6th of November, 1882, the master filed his report, in which he divided the debts and bonds proved before him into four classes. In class A he placed the debts which had a priority over the bonds. The creditors in class A were Thomas M Nelson and James B. Soule, for a debt of $25,284.17, of which $12,497.48 had a priority, and was to be paid in full; and Thomas M. Nelson, for a debt of $7,779.42, of which $3,845.20 had a priority, and was to be paid in full. In class B he placed the bona fide holders of the bonds as purchasers of them, among whom were Daniel E. Sickles for 163 bonds, amounting to $269,541.26; and Benjamin F. Stevens, for 32 bonds, amounting to $51,247.20. In class C he placed persons who held the bonds as collateral security, and the amount of security so held. Among these was Benjamin Richardson, with a debt of $273,282.87, and collateral security in 200 bonds, amounting to 374,904. After a hearing on the report of the master, and exceptions thereto, the court, on the 3d of May, 1883, made a decree providing for the distribution of the proceeds of the sale of the mortgaged property, which had taken place. After directing the payment of certain expenses and of receiver's certificates, it directed the payment pro rata from the fund remaining of certain specified bonds as a third class; no greater sum to be paid, where the same were held as security, than sufficient to satisfy the indebtedness for which they were held. In this class the decree named Sickles and Stevens as owners for the number of bonds and the amounts severally before mentioned; and Richardson and his assignee, Henry Day, for the debt before mentioned, with the lien on 200 bonds, amounting to the sum before mentioned. The decree then put into a fourth class the debts, above mentioned, to Nelson and Soule, and to Nelson, to be paid, pro rata, from any surplus which should then remain.

On the 12th of July, 1883, Sickles and Stevens were permitted, by an order of the court, to prosecute in their own names an appeal to this court from the decree of May 3, 1883; and by a like order, made on the same day, Richardson and Day were allowed to appeal to this court from the same decree. The appeal-bond of Sickles and Stevens was filed in the circuit court on September 6, 1883, and that of Richardson and Day on August 14, 1883. On the 6th of August, 1883, Sickles and Stevens filed in the circuit court a petition alleging that the master, in computing the amount due to various claimants of the bonds other than the petitioners, and who held the bonds as collateral security, and not as purchasers, had allowed to them interest to which they were not entitled. The petitioners set forth that they desired a rehearing on the point thus stated, and prayed that, where the error had occurred, there might be a recomputation of the interest, and a return of the overpayment, where distribution had already been made; and that in the mean time the master be directed to make no further distribution of the fund; and for such other and further relief as should be equitable and proper. On a hearing of the matter, the court made an order on the 1st of September, 1883, adjudging that the master had made an erroneous computation of the interest in the case of bonds held by divers claimants as collateral security, in that he had allowed such claimants all coupons appearing with and attached to the bonds, without regard to the date when they were delivered to the holders, instead of computing interest upon them only from the date of their delivery; and referring it to the clerk of the court to make a computation of the interest on the bonds from the date of their delivery to the several persons who held them as collateral security. The clerk reported such computation, and stated the amount of the 200 bonds held by Benjamin Richardson as collateral security to be $330,725, instead of, as before, $374,904. It also appeared that Richardson and Day had heen overpaid $2,173.91; and that the Wrought-Iron Bridge Company had been overpaid $183.60.

On September 11, 1883, Nelson and Soule were allowed an appeal from the decree of May 3, 1883; and on that day Thomas M. Nelson was also allowed an appeal from the same decree. An appeal-bond on each of these two appeals was filed in the circuit court on October 15, 1883. On the 8th of October, 1883, the court, on a further hearing, entered a decree, which recited that the cause 'came on to be reheard,' and also recited the filing of the petition by Sickles and Stevens for a rehearing, and the making of the reference to the clerk and his report, and stated that it appeared 'to this court that a rehearing should be had, and a correction made in the decree' of May 3, 1883, and, after reciting the provisions of that decree in regard to paying the creditors in the third class, then proceeded to give anew a list of the third class, putting down Sickles and Stevens as the owners, respectively, of the same number of bonds, for the same amounts, as in the decree of May 3, 1883, and the debt of Richardson and Day at the same amount as in that decree, with a lien on 200 bonds, amounting to $330,725, instead of $374,904, as in that decree. It also adjudged that the Wrought-Iron Bridge Company had been overpaid $183.60, and Henry Day, assignee of Benjamin Richardson, $2,173.91, and that they should severally pay into the court those sums, which should be distributed among the remaining several claimants, in proportions and amounts specified in the decree; among others, to Benjamin F. Stevens, $113.25; to Daniel E. Sickles, $595.66; to J. Bower & Co., $373.93; to John F. Betz, $357.41; to Thomas W. Ferry, $205.02; to Hiram Hodgden, $37.49; to John A. Elwell, $16.93; to Frederick A. Nims, $40.53; and to Edward P. Ferry, $64.32. The decree further provided 'that all persons having claims against the fund created by the sale of the mortgaged property herein, whether evidenced by bonds, coupons, or otherwise, shall present the same to this court within five days from the date of this decree, and in default thereof the clerk of this court shall distribute to the parties, respectively, all moneys to which they are entitled hereunder.' It further provided 'that the decree of May 3, 1883, entered herein, shall stand ratified and confirmed, except as the same is changed and modified by this decree.'

On the 17th of November, 1883, Richardson and Day were allowed an appeal from the decree of October 8, 1883. The appealbond on that appeal was filed in the circuit court, November 28, 1883. The appeal of Richardson and Day from the decree of May 3, 1883, and their appeal from the decree of October 8, 1883, are together known as No. 181. There is no other appeal but theirs from the decree of October 8, 1883. The appeal of Nelson and Soule from the decree of May 3, 1883, is No. 947; the appeal of Nelson from that decree is No. 1,027; and the appeal of Sickles and Stevens from that decree is No. 1,074.

Motions are now made in the four cases, by John Bower & Co. and John F. Betz, to dismiss the two appeals in No. 181, and the other three appeals, on the grounds that the transcript of the record was not filed, and the cause was not docketed, in this court at the term thereof next after the time when the appeals respectively were prayed and allowed; and that no citations were issued on any of the appeals. A motion is also made by T. W. Ferry, Hodgden, Elwell, Nims, and E. P. Ferry, to dismiss the four appeals from the decree of May 3, 1883, for want of jurisdiction, and also for want of due prosecution, because they were not lodged, or filed, or docketed in this court during the term next succeeding the date of their allowance; and to dismiss the appeal in No. 181, from the decree of October 8, 1883, for want of jurisdiction, because the amount involved is less than $5,000; and to dismiss the appeals in Nos. 947 and 1,027 for want of citations; and to dismiss all five of the appeals, because the appellees are not described in them with certainty. As to Nos. 947, 1,027, and 1,074, the appeal in each is from the decree of May 3, 1883. In Nos. 947 and 1,027 the appeals were allowed by an order of court, made in open court, on the 11th of September, 1883; and in No. 1,074 by an order of court, made in open court, on the 12th of July, 1883. In No. 947 the transcript of the record was filed and the case docketed in this court, January 26, 1888; in No. 1,027, June 26, 1888; and in No. 1,074, August 30, 1888. The term of this court next ensuing the allowance of the several appeals in Nos. 947, 1,027, and 1,074, from the decree of May 3, 1883, was the October term, 1883. That term commenced on the...