faction courJi. a.t any sucb suit bas heenbrougbt.or re'moved thereto, such dol's not re;i.lii InvQlye a dispute or coritroversy '\Vithi n the: of cot1tt, ... ... ... tbesaid coafl shall proceed nO' ftlrther therein, but shliUd,is-' miss said suit, or remand itt6thecourt from wbich it was removed." It appearing from the judgment sustaining the demurrer to the special plea tht\t the suit "does not reany and .f!ilbstantially involve a controversy properly within the ju'risdiction of the circuit court," the motioJl to remand is sustained." ,
GLENN fl· .NOONAN et· al. , et ale
SAltic 11. SAME 11.
LoCKWOOD tit al. DIMMOCK dal.·
(OircnU Court, E. D. Missouri., E. D. September
Under equity rule 8l!; in a non-appealable t"ase. a rehearing cannot be &fUr tHe mpse of the term suctoeeding that at which the final decree was ente'red, altbonghthe'petition is filed a.t tbe same term atwbich,tbe,decree was rendered.,
In' Motion for a rehearing. .For former report, see 23 Fed. Rep. 695. Thcrma8 K. Skillker, for comp1ninant. Th08. C. Pletdter, for defendants Noonan et nl. Noble &: Orri('k, for defendants Lockwood et ale W. H. Clopton anti Lee kEllis, for uefentlUllts Lucas etal. John lV. Dryden, .for Diinn10ck et al. .
THAYER, J. These cases alike. The record shows that at tho September term, 1886, of this court, and at the March term, 1887, detiled and sustained; that the complainmurrers to the several iJills ant dedi.ned to ph'ad further, whereupon a final decree was rendered -()frecord in each case, dismissing the bill, and at Snme term petitions for rehearing were filed in the several suits. In some of the cases, the record recites that the petition lor a rehmrinp; "was tinued until the next term," and in. others,. thatthecootii1URnC6 ..was "until the further order of the courL" No action has since been hlken on the several ptltilions for rehenring, for the reason that, until fEl<:enUy, a cause has been pending in the United States snpreme court involving the sa.mequestion raised by the dernurrtlrs, and the petitions, :by tacit cQpsent,.asit have not been called up. Mallewuts, neither has upon a hearing of the petitiuns. stipulntiqll of record" however, or on. file, signedhy the parthatacti<>o on the petitions might be deferred, which tiell, by anyp()ssiLility c:uiope.rateas an estoppel, lind thus precluclethe deas they now do, the. court has n9 power at tPil:!:time;to the stlverul .. By .the, Qf
I'EDERiL ltEpORTER, vol. 43. a'rehearing ct\nnot be allowed, after a decree is entQlle(l of After enrollment or entry of record, Or deCree cojllqnot, as it be disturbed or by appeal or a bill of review" Brown, v. .Aspden. 14 How. 25 j Olapp v. Thaxter, 7 2 Daniell, Ch. Pr. 1019, 1475, 1476. But equity rule 88 modin the federal courts .to some extent by providing that,,"N<?, fflhearing shall be grao;tl!d, after the term at which the final decree of the'court shall have been entered and recorded, iran appeal lies to the supreme
court. But if no appeal lies. the petition may be admitted at any time before the end of the next term of court, in the discretion of the court."
This rule was, in effect, held to be mandatory in Roemer v. Simon, 91 U. S. )49. Chief Justice WAITE said in that case, with reference to a sqit :and hence withip ,the first clause of the rule:' "TIle court beloVl':' grant a rehearing after the term at which the final decree waS 'rendered.' Equity Rule, 88." It the lapse ofseveralterms since the decrees in these cases were made and entered of record, the court has lost !C?,JZ;r.at.1t .. court, wlth,f!. ill ,theu favOJ:whlCb the court IS powerless, at this time, to disturb on a petition for rehearing. The pcti.tions for a rehearing must accordingly be denied, and the cases be taken frotn the docket. It is so .
,,\ f, .
llOtIND ti.SOtJTHCAROLINA Ry. Co. et al.
I!,. South, Ca'l'oZma.
August 4, 1890.)
ATTORNEY'1i! hBs-RBOEIVEU-RAJIlROAD; MORTGAGB.
.Where the ,holder of second-mortgage I'ailroad bonds brings suit lor the appointment of s receiver, and a receiver is therefote appointed with the consent of all interested parties, and to the advantage of all, the services rendered by the com. plainsl),t's att,Qrneys, being for the common benefit. sllould be paid .for froJP.,the assets of the company. . '
.. InEquity. Mitchell'&:Smith, for complainant.: S. LYrd, for defendants. . SIMoNTON,JJ. , Before
,PER CURIAM. This is anaprlication for. the payment of fees to the attorneys Of the 'complainant for -services in and about filing the bill, of's biIlwas filed bY' the and procuring' upon /lnd omission by holder of second-mortgage bonds;' the trustees,ofthe second take action in: fh l1fbehalf.. Upon the return Of the rule issued;'When)tbe bill was filed to show cause why ateceiver should not be appointed' for the South Carolina Railway Company; the trustees ofthefirst mortgage; avery'large