St. Louis S. W. Ry. Co. v. Graham ( 1893 )

THAYER, District Judge.

This is an appeal from an order made by the United States circuit court for the eastern district of Arkansas, allowing an intervening claim in a proceeding to foreclose a mortgage on the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri, and directing, it to he paid out of the proceeds of the sale of that road. The intervention is founded on a, judgment which was recovered by the appellee in the supreme court of Arkansas against the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri on the 22d day of February, 1892, in the sum of $250 and costs. The decree of the circuit court allowing the claim recites that it is one of those claims which the receivers of the St. Louis, Arkansas & Texas Railway Company in Arkansas and Missouri were ordered and adjudged to pay, by an order made by the circuit court for the eastern district of Arkansas in the foreclosure suit on the 31sfc day of January, 1890. That order is not contained in the present record, and this proceeding is not an appeal from such order. Furthermore, the record before us does not disclose the nature of (he claim on account of which a judgment was recovered in the supreme court of Arkansas. We must accordingly presume that the finding of the lower court was correct, — that the intervening claim is one of those claims which it had previously adjudged to be of a preferential character, and had directed to be paid out of the proceeds of the sale of the mortgaged property by a general order made in the foreclosure suit on the 31st day of January, 1890. The case is in all respects identical with the case of Railway Co. v. Stark, 55 Fed. Rep. 758, recently decided by this court, and on the authority of that case the decree appealed from is affirmed.