Central Trust Co. v. Madden , 17 C.C.A. 236 ( 1895 )

FULLER, Circuit Justice

(after stating the facts).

The circuit court allowed priority, as stated in its decree, under section 1528 of the General Statutes of South Carolina. In the opinion it was said that:

“The Port Royal and Western Carolina Railway Company was made up of the consolidation of other railroads, among them the Augusta and Knoxville Railroad, extending from Augusta, Georgia,.to Greenwood, South Carolina. At the time of the consolidation, bonds secured by a mortgage of the whole road were issued, which relieved' all outstanding obligations thereon, except a mortgage on that part of it theretofore known as the Augusta and Knoxville Railroad. The date of this consolidated mortgage was 2d May, 1887. That of the Augusta and Knoxville Railroad was July lsf, 1880.”

Priority was adjudged as against the Port Royal & Western Carolina Railway Company, and the bonds and mortgage made by it, as the company was chartered and the bonds and mortgage issued after the act of 1882. With respect to the mortgage of the Augusta & Knoxville Railroad Company, and the bonds secured by it, as these were issued anterior to the passage of the act of 1882, priority was not awarded.

Appellee contends that the appeal was prematurely taken, and should be dismissed, but, as the decree expressly adjudicates that the judgment of Dora Madden took priority and precedence, and finds the amount due, and decrees that the priority and preference declared must Re provided for and secured in any order of sale thereafter to be made of the property and franchises of the railroad company, we must regard it as substantially and completely determining the'rights of the parties, notwithstanding the main suit had not ripened into a final decree, which would afford the means of paying off the claim.

It is objected by appellant that the Central Trust Company should have been a party to the intervention, but that company was complainant in one of the sails, and bound to take notice of the intervention and proceedings thereunder. McLeod v. City of New Albany, 13 C. C. A. 525, 66 Fed. 378. If the mortgagee, as observed by Jenkins, J., speaking for the circuit court of appeals in that cast?, had desired to take an active part in this contest, it should have asked to be heard. This it did not do, nor did it take any means to procure a. rehearing, or bring to the attention of the circuit court any matters tending to show that such a decree as was rendered was unjust: or erroneous in any other particulars than those which could be reviewed on this appeal.

We think the objection is not well taken, and, further, that the circuit court was justified in hearing the intervention without a special reference to a master. All the other questions suggested have been determined in Railway Co. v. Bouknight, 70 Fed. 442, just decided. Decree affirmed.