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ferred to the special master for investigation and report. The special master, after several extensions of the hearing, finally took up the intervention, and on the 16th of February heard the evidence contradictorily with the complainant trustees. On the evidence so taken, the master reported against the intervenor's demands, finding that on the hearing the evidence was insufficient to establish the right to the equitable relief sought, and recommending a decree accordingly. This report was filed on June 10, 1887. On June 15, 1887, the intervenor filed exceptions to the said report, and again on August 12, 1887, filed amended exceptions to the report. These exceptions and amended exceptions attacked the master's report on its conclusions of law and its findings of fact. These exceptions came on to be heard at the succeeding term of court, and were argued and submitted, whereupon the court, November 16, 1887, rendered a decree that the said exceptions and amended exceptions should be overruled, and the said report confirmed; and thereupon it was "considered and ordered that the said WatersPierce Oil Company pay all costs incurred by reason of said intervention for which execution may issue. This order is made without prejudice.” No further proceedings were had at this term of the court with regard to said intervention. At the following May term, a final decree in the main cause was rendered, directing a sale of all the mortgaged property. At the November term in 1888, following, the sale was reported of the mortgaged property, and the sale confirmed. On October 4, 1889, without any previous leave of the court, the Waters-Pierce Oil Company filed a motion to set aside the previous orders and decrees in the case, which motion, it seems, was set down before the court at the following term, March 20, 1889, and the following order was entered:
"Motion of the intervenor herein, the Waters-Pierce Oil Company, for a rehearing in this cause, baving been set down by the court at a former day of this term for hearing this day, and it appearing to the court that no objections to the granting of said motion has been filed, now, therefore, the intervenor having appeared by solicitor, and said motion being considered, it is ordered by the court that the said motion be sustained, and the rehearing granted on April 1, 1890."
At the same time a motion was made by the attorneys of the receiver of the Houston & Texas Central Railway Company to vacate the order granting a rehearing, which on the same day was overruled by the court; and thereupon the petition of said intervention was set down for hearing for the 4th day of April following. On the 4th day of April, the court, without any recommittal of the intervention, and upon evidence then and there submitted, rendered a decree to the effect that the intervenor have and recover from the receiver of the Houston & Texas Central Railway Company the said sum of $968.22, with interest at 8 per cent. from the time the goods were furnished, and the receiver wis ordered to pay the said claims out of any funds in his hands as receiver; but it was further ordered that the cause be held by the court is on motion for a new trial for 20 days from that date; and thereupon, on the 18th day of April, within the 20 days, a motion was made to set aside the decree in
favor of the Waters-Pierce Oil Company, Intervenor, on the grounds following, to-wit:
“(1) The court erred in disturbing the findings of the special master in chancery filed herein on the 10th day of June, 1887. (2) The court erred in setting aside and vacating a decree entered in said cause confirming the said master's report; said decree being, rendered after full argument upon the pleadings and facts on the 10th day of November, 1887. (3) The court erred in granting the petition for rehearing, because the same was not filed at the next ensuing term of said court, as required by rule 88 governing said court, but, upon the contrary, said petition for rehearing was not filed for two years after the final disposition of said cause, to-wit, the said petition was filed October 4, 1889. Wherefore, petitioner prays that he be granted a new trial, and that upon the hearing the said petition of intervention be denied on the order heretofore made allowing the same to be vacated."
This last motion has been brought on before me as circuit judge, and has been argued and submitted.
The question presented is practically this: Was the decree of November 16, 1887, dismissing the intervention of the Waters-Pierce Oil Company, without prejudice, a final decree? It disposed of the intervention on its merits, leaving the intervenor with no cause before the court; it turned the intervenor out of court, and condemned him to pay costs. That the decree was to be without prejudice meant no more than that the intervenor might institute another suit to enforce his alleged rights, and, at best, might, perhaps, intervene again on the same cause of action in this same cause. A decree is final when it determines the litigation on the merits, and leaves nothing to be done but to enforce by execution what has been determined. See St. Louis, etc., R. Co. v. Southern Exp. Co., 108 U. S. 24, 2 Sup. Ct Rep. 6; Railway Co. v. Dinsmore, 108 U. S. 30, 2 Sup. Ct. Rep. 9; Ex parte Norton, 108 U. S. 237, 2 Sup. Ct. Rep. 490. When an intervention under a claim of a prior lien is dismissed, the order as to the intervenor is final. Gumbel v. Pitkin, 113 U. S. 545, 5 Sup. Ct. Rep. 616. As no appeal could be taken from the decree, it is my opinion that the decree was, in all respects, from the time of its rendition, a final decree. But it is not necessary to go so far in this case; because, at the next term following the decree, a final decree was rendered in the main cause, and then, if not before, it seems clear that all decrees theretofore rendered upon interventions, whether appealable or not, became final. The eighty-eighth equity rule provides “that no rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an 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 the court in the discretion of the court.” In the present case, the application for rehearing was not filed until the fourth term of the court after the decree sought to be reopened was rendered, nor until the third term of the court after the final decree in the main cause was rendered; and the petition or application for a rebearing was not admitted by the court until the fifth term after the decree to be reviewed was rendered, nor until the fourth term of the court after the final decree in the main cause was rendered. Un
der the plain language of the equity rule above quoted, it seems clear that, when the petition for rehearing was admitted by the court, the court was without power or authority to grant the application.
In Roemer v. Simon, 91 U. S. 149, the supreme court, in considering the effect of equity rule 88 in an appealable case, say:
“The court below cannot grant a rehearing after the term at which the final decree was rendered.”
Mr. Justice HARLAN, in the case of Morgan's, etc., Co. v. Texas Cent. Ry. Co., 32 Fed. Rep. 530, says:
"It is an established principle that, except upon bills of review in cases in equity, upon writs of error coram vobis in cases at law, or upon motions which, in practice, have been substituted for the latter remedy, no court can reverse or annul its own final decision or judgment for errors of fact or law, after the term at which they have been rendered, unless for clerical mistakes; from which it follows that no change or modification can be made which may substantially vary or affect it in any material thing.' -Quoting Sibbald v. U. S., 12 Pet. 488; Bank v. Moss, 6 How. 31; Bronson v. Schulten, 104 U. S. 415; Schell v. Dodge, 107 U. S. 630, 2 Sup. Ct. Rep. 830; Phillips v. Neyley, 117 U. S. 665, 6 Sup. Ct. Rep. 901; Cannon v. U. S., 118 U. S. 355, 6 Sup. Ct. Rep. 1064.
If equity rule 88 is thus absolute with regard to the power of the court to grant a rehearing in equity causes in which an appeal lies, after the term at which the final decree is entered and recorded, it seems to be equally absolute with regard to the power of the court to grant a rehearing in equity causes in which no appeal lies after the next term of the court following the term in which the final decree was rendered. As the court was without power or authority to grant the application, it seems to follow conclusively that the order granting the rehearing, and the subsequent proceedings thereunder, were void. It is therefore ordered, adjudged, and decreed that all the proceedings had in the matter of the Waters-Pierce Oil Company intervention in this cause, since the adjournment of the March term, 1888, be and the same are vacated and annulled. It is further ordered that the Waters-Pierce Oil Company be condemned to pay all costs incurred herein since the March term, 1888, aforesaid.
UNITED STATES v. MASIch et al.
(Circuit Court, E. D. Louisiana. November, 1890.)
RECEIVERS-WHEN APPOINTED-MORTGAGEE IN POSSESSION.
As against a mortgagee in possession of the mortgaged pr perty, & receiver will not be appointed in favor of one claiming a subsequent lien bereon by seizure un. der execution, but the court will compel the application of the rents and profits of the property to the satisfaction of the mortgage, by injunction
At Law. On motion to appoint a receiver.
T. J. Semmes, for defendants.
PARDEE, J. Since the bill was filed in this case, the defendants by transfers of notes and properties among themselves have materially changed the status and possession of the property on which complainant claims a lien by and through seizure under execution. These transfers pendente lite cannot, of course, prejudice any of complainant's rights in and to the property upon which the lien is claimed; but I think they may be considered in determining the present question before the court, which is, whether it is necessary, in order to protect complainant's rights, that a receiver of the property in controversy should be appointed, so that the rents and profits may be applied, so far as may be equitable, towards the satisfaction of complainant's judgment against Masich. The bill makes no serious attack upon the validity of the vendor's lien and privilege claimed for the second note of $8,000, given by Faget at the time of the purchase of the property. The showing made upon this hearing leaves little doubt in my mind as to the validity and priority of that vendor's lien. This showing is to the further effect that defendant David Jackson is the owner of that mortgage note carrying the vendor’s lien, and is in possession of the mortgaged property for the custody of which the receiver is asked. It is true that by the letter of the transfer made he is in possession as owner with said note extinguished; but as such transfer imports that he purchased the property, giving the said note as part consideration, it would seem clear that his worst position in regard to the property is that of a mortgagee in possession. Against a mortgagee in possession, the general rule is not to appoint a receiver in favor of subsequent lienholders. See Beach, Rec. $ 80. While Jackson's actions and conduct in the matter, both before and after filing this bill, are such as to throw suspicion upon him, and tend to show that the charges made by complainant in the bill, as to his collusion with defendant Masich, in this case, are true, I am inclined to think that all that the complainant can ask in the case is that the rents and profits of the real estate in question shall be applied in favor of its claim, if eventually sustained; and this can be as well done, indirectly, by compelling the application of rents and profits to the satisfaction of the undoubted prior mortgage as by the appointment of a receiver. I am of the opinion that an injunction should issue in the case restraining defendants, Jackson and Masich, from further transferring or incunabering the property in any wise, and from applying the rents and profits of the said real estate to any other purpose than the reduction of the principal and interest of the note for $8,000, made by Laurent Faget to his own order, and by him indorsed, dated 19th April, 1884, payable two years after date, which note is alleged to be secured by the mortgage and vendor's privilege upon the property in question. Such injunction may issue.
McCULLOH v. SMITH.
(Circuit Court, S. D. New York. October 1, 1890.)
SALE-FAILURE TO ACCEPT-REMEDIES OF SELLER.
Where a corporation wrongfuily refused to accept and pay for certain watch movements made for it, the maker may himself sell them, though the name of the corporation was, by its direction, inscribed on each movement.
On Motion for Preliminary Injunction.
LACOMBE, Circuit Judge. Defendant by his affidavit admits that he has sold about a dozen watch movements bearing upon them the name of the Non-Magnetic Watch Company of America, as to which he offers no explanation or excuse. Small though this violation of his rights may be, it is sufficient to entitle the complainant to a preliminary injunction. The order, however, should except from its operation those movements which were made by Aeby & Co., at its request, for the corporation, represented by the complainant, as receiver, upon which its name was inscribed by its own directions, which were tendered to it and refused, without any other expressed ground than its inability to pay for them, and as to which Aeby & Co. have not rescinded the contract of purchase because of such failure to accept. As to those movements, the equities of the case, so far as the papers show, seem to be with Aeby & Co., and the defendant is their agent. That the inscription upon these particular movements would seem to imply that they are the goods of the Non-Magnetic Watch Company of America is immaterial. They are in fact the goods of that company; goods of which the law makes Aeby & Co. the selling agents, and as to the proceeds of which they must account when their claim upon the corporation for the agreed price of such movements comes up for adjustment. Nor is the public in any way deceived. The movements are made by the same makers, and, for all that appears, are identically the same in character and quality with those which complainant is selling. In order to avoid embarrassment in the future, the order should, if possible, describe the excepted movements by number.