Root v. Mills

Decision Date05 January 1909
Docket Number1,477.
Citation168 F. 688
PartiesROOT et al. v. MILLS et al.
CourtU.S. Court of Appeals — Seventh Circuit

Rehearing Denied February 19, 1909.

B. H Canby and A. W. Hope, for appellants.

James P. Dawson, for appellees.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP Circuit Judge.

The bill in the court below asked that appellants, trustees under the will of Augustin K. Root and executors thereof, be removed, and that pending action of the court upon such bill a receiver be appointed to take charge of the assets of the estate until other trustees might be appointed. The bill was filed October 25, 1907, and upon the same day, upon an ex parte hearing, a receiver was appointed, who took possession of the property therein named.

November 2d, following, the defendants by their solicitors, moved the court to so modify the foregoing order that, pending the final determination of the case, the trustees might be permitted to collect, receive and distribute to the parties entitled thereto under the will, the income of the securities belonging to the estate which motion was, on the 9th day of November following, after argument of counsel, duly denied, the defendants on the preceding day having entered their general appearance in the cause.

December 5th, following, defendants filed their motion to discharge the receiver and dissolve the injunction (an injunction merely incidental to the receivership), which motion was overruled on the 21st day of February, 1908; and thereupon, on the 2d day of March following, defendants filed their application for appeal. The motion under consideration is to dismiss this appeal upon the ground that it was not taken within thirty days after the entry of the decree appealed from.

Section 7 of the Act approved April 14, 1906 (34 Stat. 116, c. 1627 (U.S. Comp. St. Supp. 1907, p. 209)) provides:

'That where upon a hearing in equity in a district or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed, by an interlocutory order or decree, in any case, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver, to the Circuit Court of Appeals: provided that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court.'

This section, in the interest of a more liberal right of appeal, is a distinct departure from the policy of Appeals under the older Chancery rules; but is intended to be safeguarded against abuse by the provisions looking to promptitude of action-- a provision that is intended to be strictly enforced.

The contention of appellee is that the date of 'entry of the order appointing the receiver' is October 21st, 1907. Joseph Dry Goods Co. et al. v. Hecht, 120 F. 760, 57 C.C.A. 64 (Circuit Court of Appeals, 5th Circuit). The contention of appellants is, that the date of such 'entry' is February 21st, 1908, the day when the motion to dissolve the order was overruled.

We cannot concur in either of these views. What constitutes the 'entry' of the order within the meaning of Section 7,...

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9 cases
  • Marion Mortgage Co. v. Edmunds
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 7 Abril 1933
    ...v. Weiss (C. C. A.) 156 F. 328, 334, and a negative one in Pacific Northwest Packing Co. v. Allen (C. C. A.) 109 F. 515, and Root v. Mills (C. C. A.) 168 F. 688. An appeal from such an order was upheld in Re McKenzie, 180 U. S. 536, 21 S. Ct. 468, 45 L. Ed. 657, with no discussion of its ex......
  • Miller v. Pyrites Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 11 Junio 1934
    ...Railroad Company (C. C. A.) 252 F. 965; Talbot v. Mason (C. C. A.) 125 F. 101; Albright v. Oyster (C. C. A.) 60 F. 644; Root v. Mills (C. C. A.) 168 F. 688. The Millers in their petition asking leave to intervene set up that it was desirable to have a receiver appointed for the Silica Gel C......
  • Maxwell v. Enterprise Wall Paper Mfg. Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 4 Noviembre 1942
    ...not inconsistent with this opinion. 1 28 U.S.C.A. § 227. 2 Dreutzer v. Frankfort Land Co., 6 Cir., 1895, 65 F. 642, 646; Root v. Mills, 7 Cir., 1909, 168 F. 688, 690; Pacific Northwest Packing Co. v. Allen, 9 Cir., 1901, 109 F. 515, 3 Haight & Freese Co. v. Weiss, 1 Cir., 1907, 156 F. 328, ......
  • American Grain Separator Co. v. Twin City Separator Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 3 Diciembre 1912
    ... ... were respectively located. The complainant asserted that ... these riding aprons in the defendants' fanning mills ... appropriated the principle and, by the same mode of ... operation, performed the functions of Froslid's patented ... inventions by mechanical ... the arguments of counsel, the other proceedings at that time ... upon which the order is based and the order itself. Root ... v. Mills, 168 F. 688, 689, 94 C.C.A. 174, 175; ... Taylor v. Breese, 163 F. 678, 684, 90 C.C.A. 558, ... 564. The order refusing to dissolve ... ...
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