FINANCE CO. OF PENNSYLVANIA v. CHARLESTON;
C. &: C.
sented by defendant, as bearing on this point of transfer, are not directed to the discretion of the court, nor are they calculated to impel that dis· . cretion to action. The petition for a change of venue to the eastern division is therefore overruled.. Defendant is ruled to file answer herein within 30 days from the date of filing hereof.
FINANCE Co. OF PENNSYLVANIA et al.
CHARLESTON, C. & C. R. Co.
Ex pam MOORE.
(OLrcutt Court, D. South Carolina. March 11,1892.)
RAILROAD COMPANIES-FoREOLOSURB OJ' MORTGAGB-RECEIVBRS-PRIORlTIB8 01' LIENS.
The order which a court of equity. on appointing a railroad receiver, makes for the payment of wages due employes for a reasonable periQd priort<> the receivership, is merely a personal protection, given ex flTatia to th!>sewho. depend upon their daily labor for support, and will not cover a claim by a merchaut for rations furnished t<> such laborers, under cQntract with the company, and for which compauy alone is liahle, although the company charges the rations t<> its laborers as part of their wages. The claim is entitled t<> payment before the payment of interest on the mortgage bonds, and if any sums applicable thereto have been paid out for sucb interest, or tor permanent improvements whereby the bondholders have been benefited, the claim will be a charge, to the.&mountof the moneys 80 diverted. upon any earnings in the hatl(js of the receiver. or, failinlt these, upon the proceeds of the sale of the road. 48 Fed. Rep. 188, followed.
In Equity. Suit by the Finance Company of Pennsylvania and oth. ers against the Charleston, Cincinnl1ti & Chicago Railroad Company to foreclose a mortgage. Heard on the petition of G. M. Moore, claiming priority of payment for supplies furnished to laborers. For other phases of the litigation, see 45 Fed. Rep. 436, and 48 Fed. Rep. 45, 188. MitcheU<!c Smith and B. A. Hagood, for petitioner. A. T. Smythe, opposed. SIMONTON. District Judge. The petitioner is a merchant at Blacksburg, a town on the line of the Charleston, Cincinnati & Chicago Railroad. In 1890 he entered into a contract with the defendant company to furnish rations to hands employed by it. The company charged these rations to the hands as part of their wages. The items were all charged to the railroad company. The accounts were regularly made out against and presented to the company, audited, and passed. Upon bill filed by the mortgage bondholders, a temporary receiver was appointed on 10th 1890. On 26th February, 1891, the permanent receiver was appointed. In the order appointing the permanent receiver is this provision: "That the receiver pay all wages due to the employes at the date of the order appointing a temporary receiver herein for labor or services, within ninety days before the same." The petitioner presents
and proves an itemized account. wherein appears that,. within the 90 days before December lQ" 1890, he had furn.ished to the Cl>mPany, under his contract, 8321. 72jand that prior ta that date, from. May 14, 1890, he had furnished the rest of the items on his account., The whole account, including both periods, foots up 8002.80. He clai.Qls that, inasmuch as he furnished rations which were used in part payment of wages to employes, he comes within the equity of this order of 28th February. and that as to the rest of his account he comes within the equity established in F08dick ". SchaU, 99 U. S. 235. As I understand the current of cases which bElgan with Fosdick v. Schall, the rule is this: When holders of railroad bonds, secured by mortga!!e, come into a court of equity, and ask not only the foreclosure of the mortgage, but also the appointment of a receiver, into whose hands the corporation shall be compelled to deliver all its property, the court, as l:l- cqndition precedent to granting this last request, can impose terms in reference to the payment from the income during the-receivership of such outstanding claims as address themselves peculiarly to the protection of the court. Ordinarily a mortgagor is entitled to the possession of his property until the execution of a decree for foreclosure. When the mortgagor is a railroad company, the employer of many persons on weekly wages, both the employer and employed can enter into engagements relying upon this normal condition. If, therefore, the court, at the instance of mortgage creditors, interrupts the possession of the railroad company, and suddenly removes the employer from control of current earnings, it may well see to it that the employed are not put at a disadvantage, or be made to .suffer from this un·expected change. Without considering liens or equities. acting only in its discretion, it imposes upon the suitors, as the condition of granting their request, that such employes be paid, not only accruing wages, hut such as have' accrued within a reasollable period. 'fhis is not a right It is vested in the employes, <lran equity administered in their a personal protection to them by the court ex gratia, moved thereto by the fact that this class depend upon their daily labor for thtdr daily food. Afterwards when the court has assumed the administration of the property, and it appearing that there are certain outstanding claims in the hands of persons who furnished equipment materials, supplies, or anything which was necessary to keep the railroad a going concern, then the court administers an equity,and the benefits at this equity inure as well to the original parties keeping up the road as to their TrU8t Co. v. Walker, 107U. S. 596, 2 Sup. Ct. Rep. 299. In the present case, when the complainants made their application for a receiver, the court took into consideration what conditions should be imposed on the grant of their prayer. These conditions were payment of wages due to the employes within 90 days before 10th December, 1890. There are no wages due. The petitioner did not pay them any did not deal with nor credit them. He furnished the company with goods, charged them to the compally,and looked to the company only. There is nothing like subrogation here; and, as the employes themselves are paid, not as a matter of. right, but as a matter of grace, nothing to be subrogated
to. Dealing with the interest of mortgagees in railroad property, we encounter vested rights. They cannot be displaced llpOn any mere idea of right,. or on 8,ny tefined notions of equity.: '.' Inmannging the-property, the court is nor can it entertain,sentiments ofbenevolehce or.hunuitlityitl disbursing the funds,-..;.luxuriet:dn which the owner alone catlindulge. So much of the petition as prays l;pecial under the brder of 28th February, 1891, is disallowed. The claim comes nnder the principIes laid down in Posdickv. We have passed upon several claims of this character in the inta'Vetltion of the PocahontaBOoaI Oo.et4l..in the main cause, (48;Fed. Rep. 188;) Let the claim of the present petitioner be included with those cIaimsto the aIllount; proved, 8902.80, and share the same fate.
D. ConnectiC'itt) March
Tbellupreme court. dillmissed an app8;31from the circuit court, with a mandate requilil1g appellanUo.pay tbe COllte. TbQreaft,er tbe appellant, witbout paying tbe costs, a biU in the circuit court to review its judgment, wbicb was demurred to for want of an allegation tbat the coste were paid. Tl;le court beld that this was not a ground of demurrer, but that the proper remedy was to stay prooe.edings until payment of the costs. No order was. aske!l.fi;ring a time for such payment, aiJd payment wu made and accepted by defendant's counsel two months and twelve days thereafter. Held, tbat tbe delay was not so unressonableas to debar plaintur from filing a supplemental bill alleging such payment. I
011' COBTlI-RuBONABLB D.BL.lT.
In Equity. Bill of review by Martha A.Milleragainst Emma J .C]llrk and others. For opinion on demurrer to the bill, see 47 Fed. Rep. 850. The hearing is now on a motion to strike out a. suppleIllental bill. Overruled. John M. Buckingham. for plaintiff. W. B. Stoddard, for
SHIPMAN" District Judge. This i$.a motion to strlke from the files the supplemental bill in this case, which alleges the payment of costs, upon the ground that the payment and the supplemental bill were delayed for an unreasonable time. Two other grounds were suggested in the motion, were not pressed in the argument. In the decision, which was made alter the argument of demurrer, and which was filed November 3,1891, I said that the omission to state the payment of costs in the bill was not a subject of demurrer; for the payment of costs was one of procedure, rather than jurisdi(ltional, but could be taken by a motion to !ltay procee<Hngs; and also said: "Before a decision upon the other questiOns contained in the demurrer, proceedings under the bill of review should be stayed until the mandate of the supreme court has ,been complied with," etc. No order of sl.ay