tpatco:Qstructioij; 'Y4i.ch the parties atld acted upon yellrll. , We,4Q not hoIIl City & Nor;t;hern Railroad and ill paying D:,li1eagecreatesl1ll estoppelagainst it and its sucso putt;lpon the cessors, ,but.we do holQ. meut shquld deterIPine its tJ;ue QOnstruQtion, unless. it is at variance,with the provisions of tJle instrument, which in this instance does nqt . . ' appear to tis to be the, CaM; . ," . In Our opinion, the Anding of tbemal!lter was,fortp.e right party, we accQrdingly pverru]ethe, l¥ld confirm there1>0rt.,
i)
'f: .
",f;
:
m:1 (:.'..:
,i' ",J
(Oircuit Oourt,' iJ, Oololoado.·· March' 19. 1888;) , ',',',
)
,
Where.a decree fillds a:C(>l)uact r.egarding various loans mil-de by defendao..t. and.directs Rp,a<;countingtllereof, a motion to modify tbe decree so as to except certaIn of the wl1l be denied. although an appeal has been allowed; since the' decree, 'if ititerlocutory, can be corrected on the coming in of the and; if final. by the supreme.court,
"
,"
;:
, On ;Moti9P,to ?do,dify Pecree., ,';l'he original opinion is reported'in 33 ";; : ..... <. . ... J. P., BrOC'kuJay, for compJllinllnts. :&: ;Vaile. forq.efendant.. "
,,'.,'
of 1888, siglled and entered, and now a motion. hltsbeen made for modification, of that eree. W!lS giyento cqmplain,ants,who, however, failed.to appear, ,by mail. as. insufficifilncyof notice; asWelllj.s,that the fads did not justify any such moq.ifiGatiQD,,' ,; '1'hedefendant w.ishes the decree. modified in two respects: .<l/::te,py the. insertion ora clause exdudingthe private.debts;of the cOn:mll\iullPliS :ij;enryand· the Colorado Loan & Trust Compwy; jandtbe:seco!¥it,:byexaluding.two 10ans,-01+e of March lQ, 1884, for.860,OOO,andt Qne .of. April 1,lS84, secured by deeds of trust. upon some farm :landsbelpnging to two onhe .ditcb cqm· panies. SO JR.],' as the it iscleaJ:ly The .decree does not include tpe private debts referred. to, and whe.n th,e decree was being pr,eparj:id the lapgntlge pfthe draft as presented to D).6 Wfl,B cbarigEldpurposely, of counsel, so all no.t ta debts. l filed indicated that.they Were not"in(lluded, and tQ.eir .0r.nissipD,.from. the decree is fully as as a e,xcludingthem., ',!'he. pt'Pyision in the decree fora state,. BREWl!ll\,J.
CENTRAL
WAnAsIl;:sT.
L. & P. RY.
CO.
'259
.lDep.t by tqlil! between COlpipmil1l:J.llts,and was made under thebelief.that.when the whole, account was stated., ifrany either party $,S il?iprovedy placed, e.lther 'singleitjlJ:P.was amQQg 'Mr. Jillnry's pnvated,ebt{! pr at;nong thpse.,qf thll ditch the matter could be separately inquired into by the court, and the error, if any there was, corrected without a further reference to the master. With regard "the . . matter I am not 'so" clear,'and cannotpbsito , other .' 1', , tively. aeterniine without re-examining at some length the volumes of . I do not feel thatcitis incumbent on me, to make that exL amination, for I thinktherlghts of both parties calil be preserved without any present modificatioDofthat decree. I regard the decree as all ih'terlocutory one. True, on the application of the defendant, I allowedah appeal as though it were a final deoree, for the question whether itls'final or interlocutory is one which the appellate court must finally decide. I feel indntyboundto render every assistance to a'party against whom I rule to enable him to present that adverse ruling! to the supreme court in,sucQ as he deems best. Of course, if iris to be a fiillil'decree, and there was error in finding, as I did, the existence of a contract, the supr,eme court will reverse tbe'decree in toto. If, on the other harid,they sustairimy finding as to the existence of the cbnthlct, but hold that it did not include' these farm mortgages, then the decree will be reversed pro tanto. So, if it should be adjudged, as I think it will, thatthis isa mere interlocutory decree, then, on the coming in of the repbrt' of the masttu,the matter now presented in this applicatibn for a modification can befQJly considered, and a final decree entered according as the factS reqUire; for it is a.bundantly settled that up to the time of the final the case 'is within the control of the court, !tnd an error or mistake in any interlocutory matter or decree can be then corrected. So, without a.ttempting now to decide whether' these farm mortgages were included withiri'the terms of the contract, the application will be overruled. , , ,
TRUST
Co. et al.
fl. WABASH, ST. L. &;P. MAN et al., Intervenors.)
Ry. Co. et 01.
(GIL-
(Oircuit (Jourt, B. D. Missouri, E. D.March 19, 1888.)
1.,
The property of defendant' railway company was made up of the idation of a number of Iines.:someof which were taken by purchase. and some ·. Nearly all of these lines were subject to prior and there was also two general mortgages on the consolidated system. Defendant filed '& 1>ill confessing insolvency, and asking theappoihtmentof toad· ministtlr its assets among its creditors. The lessor companies were made defendants, and an order was made appointing receivers to operate :the entire system. It was also rrovided that lI,ny lessor might at any time,' assert rIght topo'!!session 0 lines'leased by him for unpaid rent. Held. that the taking possession of leased lines by the recei versdid ,not make th em , leaslls, so as to make the rentals due undllrS!1cb. leases prior to the mortgages. ' , .. "
OOMPANIES-INSOLVENCY AND RECEIVERS-LEASED LINES-CLAIMS ,FOR RENT-PRIORITIES.
