Statement of the Case.

the United States for the District of West Virginia on the 12th day of December, 1885, and by said decree of confirmation of sale made in said cause in the Circuit Court of the United States for the Southern District of Ohio, Eastern Division, on the 15th day of December, 1885, and by the deed of the special commissioners aforesaid; except the lien hereinbefore expressly retained and reserved upon the property in the State of Ohio." The lien so reserved had no relation whatever to the claim of the Adams Express Company herein.

Before this appeal was heard on its merits a motion was made on behalf of the appellee to dismiss it on the ground that the decree appealed from was a joint decree against the Mercantile Trust Company and the Kanawha & Ohio Railway Company, and that the trust company had appealed without either joining the defendant railway company or instituting any proceeding in the nature of a summons and severance. The facts upon which the motion to dismiss turned were as follows: The claim of the Adams Express Company was for a lien prior to and adverse to the mortgage, which was the basis of the main action, and the express company was, therefore, neither a necessary nor a proper party to the action as an intervener, but it was allowed to file its petition under the following agreement spread upon the minutes of the court: "The parties hereto consent to said application and to the adjudication of said alleged lien in this suit, it being agreed that the sale under the decree herein shall be free from said alleged lien, and that the same, if adjudicated in favor of said Adams Express Company, shall be transferred to the proceeds of sale and paid out of the same." This entry was made upon the same day upon which the decree of sale and foreclosure was entered. The intervening petition was filed at once, and in due course the Mercantile Trust Company and the Kanawha & Ohio Railway Company filed answers. Thereafter, on March 4, 1890, the railroad was sold under the decree, and the sale was confirmed on April 7, 1890. On April 27, 1891, and on May 5, 1892, stipulations as to the evidence to be used upon the hearing of the express company's petition were entered into and subsequently placed on the minutes of the

Argument for the Motion.

court. These stipulations were signed by the solicitors for the Mercantile Trust Company and the Adams Express Company. The solicitor for the defendant railway company did not sign either stipulation.

On June 6, 1892, the Circuit Court entered the decree appealed from, as follows: "This cause came on to be heard upon the intervening petition of the Adams Express Company, the answers thereto and the evidence, and was argued by counsel and submitted to the court. Upon consideration whereof the court finds that there is due to the said Adams Express Company upon the receiver's certificates mentioned in the said intervening petition the sum of $53,058.04, with interest from this date, and that for the payment thereof said Adams Express Company has a first and prior lien upon the railway involved in this suit, which, under the stipulation of the parties herein, has been transferred to the proceeds of the sale of said railway heretofore made. It is therefore ordered, adjudged and decreed that there be paid to said Adams Express Company out of the proceeds of said sale said sum of $53,058.04, with interest from this date, and also its costs."

The Kanawha & Ohio Railway Company was a corporation of Ohio and West Virginia. The mortgage foreclosed below covered all its property and franchises of every character. The bonds issued by the company and secured by the mortgage amounted to $1,160,000. They contained on their face a stipulation that the stockholders of the Kanawha & Ohio Railway Company were released from any liability on their stock beyond the paid-up capital of the company. The road sold for $505,000. The mortgage debt was more than double that amount.

Mr. Lawrence Maxwell, Jr., (Messrs. Ramsey, Maxwell & Ramsey were also on the brief,) for the appellee, for the motion to dismiss the appeal.

The intervening petition of the Adams Express Company presented the claim of a lien in its behalf against both the Kanawha & Ohio Railway Company and the Mercantile

Argument against the Motion.

Trust Company, and the judgment of the Circuit Court was jointly against both of the defendants to the intervening petition, decreeing the alleged lien of the Adams Express Company against both of them, and upon the same issues as to both. In other words, it was a single decree against both jointly from which no appeal could be taken by either separately, without joining the other or taking proceedings in the nature of a summons and severance. Owings v. Kincannon, 7 Pet. 399, 402; Todd v. Daniel, 16 Pet. 521, 523; Wilson's Heirs v. The Life and Fire Insurance Company of New York, 12 Pet. 140; Smyth v. Strader, 12 How. 327; Davenport v. Fletcher, 16 How. 142; Mussina v. Cavazos, 20 How. 280, 289; Masterson v. Herndon, 10 Wall. 416; Hampton v. Rouse, 13 Wall. 187; Simpson v. Greeley, 20 Wall. 152; Feibelman v. Packard, 108 U. S. 14; Downing v. McCartney, 131 U. S., Appendix xcviii; Mason v. United States, 136 U. S. 581; Hardee v. Wilson, 146 U. S. 179. In Hanrick v. Patrick, 119 U. S. 156, 164, Mr. Justice Matthews said that the rule relied upon by the appellee with respect to appeals against joint decrees was applicable as well to decrees upon intervening petitions as to decrees upon original bills.

Mr. Thomas Thacher for the appellant, in opposition to the motion to dismiss the appeal.

The rule upon which the appellee relies is, perhaps, best stated in the opinion of Mr. Justice Miller in Masterson v. Herndon, 10 Wall. 416. He says: "It is the established doctrine of this court that in cases at law, where the judgment is joint, all the parties against whom it is rendered must join in the writ of error; and in chancery cases, all the parties against whom a joint decree is rendered must join in the appeal, or they will be dismissed. There are two reasons for this: 1. That the successful party may be at liberty to proceed in the enforcement of his judgment or decree against the parties who do not desire to have it reviewed. 2. That the appellate tribunal shall not be required to decide a second or third time the same question on the same record." In re

Argument against the Motion.

gard to what is necessary in order to do away with the force of the rule, he adds: "We do not attach importance to the technical mode of proceeding called summons and severance. We should have held this appeal good if it had appeared in any way by the record that Maverick had been notified in writing to appear, and that he had failed to appear, or, if appearing, had refused to join." See also Germain v. Mason, 12 Wall. 259, and Forgay v. Conrad, 6 How. 201.

The appellee must establish that the decree appealed from is a joint decree; that the complainant and defendant in the main cause were jointly interested in that decree; and that the railway company was so interested that it could have appealed. If it does not appear that the railway company could have joined in the appeal, then there can be nothing in this motion. Farmers' Loan and Trust Company v. Waterman, 106 U. S. 265; Basket v. Hassell, 107 U. S. 602.

So far as appears from the transcript of record, the decree was simply for payment "out of the proceeds of said sale." What is the relation of the railway company to the proceeds does not appear. The whole record in the cause is not returned, but only so much as was needed to present the merits of the appeal. The transcript appears to have been so limited by agreement of the solicitors on both sides. If the appellee had had in mind the present point, the transcript could easily have been made more comprehensive, so as to show the relation of the railway company to this fund. The burden is upon the appellee upon this motion. It cannot possibly assert upon this transcript that the decree is a joint decree, or that, when the appeal was taken, the railway company had any interest in the fund to which it related.

If the transcript is incomplete, that is not ground for dismissal. Nashua & L. R. Corp. v. Boston & L. R. Corp., 51 Fed. Rep. 929, 931.

If the full record is read, it will be seen that the suit was one brought by the trustee under a railroad mortgage for the foreclosure thereof; that a decree of sale was entered on the same day as the order allowing the filing of the intervening petition, that is, on December 5, 1889; that said decree was

VOL. XVI-4

Argument for Appellant.

entered upon orders pro confesso theretofore entered against the Kanawha & Ohio Railway Company and another; that said decree found the indebtedness under the mortgage to be $1,160,000 of principal and a considerable amount of interest, and directed the sale of the mortgaged property in default of payment of the interest; that a sale was made on March 4, 1890, and was confirmed on April 7, 1890; and that the purchase price was $505,000,- much less than one-half of the debt. The transcript of record shows that after the sale and the confirmation thereof the railway company was regarded by both parties to this appeal as having no possible interest in the contest arising upon this intervening petition. The railway company does not seem to have done anything in regard to this contest thereafter, and the hearing proceeded almost entirely upon two stipulations as to facts, in which the railway company did not join. It is submitted that it is perfectly clear not only that at the time of the appeal the railway company had no interest in the proceeds of the sale giving it a right to appeal with respect to the disposition thereof, but that this was known and recognized and assented to then, and before and since, until this month, by the intervening petitioner. The motion should be denied.

Mr. Thomas Thacher for the appellant upon the merits made the following points and cited the following authorities:

I. These certificates having been issued under an order made without notice to parties interested are not entitled to recognition anywhere, because the court in West Virginia has not, after notice and hearing, approved them. Union Trust Company v. Illinois Midland Railway Company, 117 U. S. 434. Indeed, in legal effect, these certificates have been disapproved by that court. It gave an opportunity by directing a reference for the determination of all claims against its receiver, and the report of the commissioner as to all debts of the receiver was approved and embodied in the decree of June 10, 1886. That court thus, in effect, adjudged that nothing should be paid on these certificates.