Ex Parte Railroad Co.

95 U.S. 221 (____)

EX PARTE RAILROAD COMPANY.

Supreme Court of United States.

Mr. Thomas G. Jones for the petitioner.

Mr. D.S. Troy, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This petition for a mandamus is resisted, upon the general ground that the South and North Alabama Railroad Company cannot appeal, because its rights are not injuriously affected by the decree. That company was a party to each of the suits consolidated for the purposes of the decree. It was, therefore, a party to the consolidated suit, and entitled to be heard upon the pleadings as they stood before the consolidation, since no change in that particular was ordered or deemed necessary by the court. Among the pleadings in the Strang suit, thus brought into the consolidated suit, was the cross-bill of this company praying affirmative relief in the final determination of the cause. It matters not that at a former day in the term a special decree had been rendered upon the subject-matter of the cross-bill, and that an appeal from that decree had been taken; for "a cross-bill is a mere auxiliary suit and a dependency of the original." Cross v. De Valle, 1 Wall. 5. As we have said in Ayres et al. v. Carver et al., 17 How. 591, "both the original and cross-bill constitute one suit," and ought to be heard at the same time. Consequently, "any decision or decree in the proceedings upon the cross-bill is not a final decree in the suit, and ... not the subject of an appeal to this court... . The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case. That appeal brings up all the proceedings for re-examination, when the party aggrieved by any determination in respect to the cross-bill has the opportunity to review it, as in the case of any other interlocutory proceeding in the case." A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the action. 2 Daniell, Ch. 1548. The South and North Alabama Company deemed it necessary, for the protection of its rights in the mortgaged property, that in any sale which might be ordered provision should be made for the payment of its claim out of the proceeds, insisting, for that purpose, that its lien was prior in time to that of either of the other mortgage creditors. To accomplish this, a cross-bill was necessary, and it was accordingly filed. The decree upon this bill being, under the ruling in Ayres v. Carver, interlocutory only, was superseded by that of July 3, which finally disposed of the cause in a manner entirely inconsistent with its provisions. It is clear, therefore, that the decree as rendered did, in effect, deny the company the relief it asked, and that, if there were nothing more in the case, redress might be had by an appeal.

But it is claimed that, as in the answer of the South and North Alabama Company to the bill of Young, it was stated that pending that suit, and consequently pending that of Strang and the cross-bill; the company had assigned its debt, it had now no right to insist upon affirmative relief in the action, and, therefore, could not appeal. In both the suits it was a defendant against whom relief was asked. It defended against the claims of the several complainants, and, as an incident to that defence, sought to obtain protection for its own rights. It is well settled that an assignment by a defendant of his interest in a litigation does not necessarily defeat a suit. His assignee taking pendente lite is bound by what is done against him. The assignee may, at his own election, come in by an appropriate application, and make himself a party, so as to assume the burden of the litigation in his own name, or he may act in the name of his assignor. A pendente lite assignment carries with it an implied license by the assignor for the use of his name in the cause by the assignee to protect the rights assigned. Of this, the plaintiffs in the action cannot complain, because the assignee is bound by all that is done, whether a party by name or not. Acting upon this principle, notwithstanding the statement in the answer, the company has all the time, in the whole course of the subsequent proceedings, been treated as the representative of the interest of its assignee. Subsequent to the answer, and during the May Term, 1876, the cause was submitted by consent of all parties for decision and decree upon the question whether the mortgage claim or lien asserted and disclosed in the answer and cross-bill in the Strang suit and in the answer in the Young suit was, and still continued to be, paramount and superior to the claims and liens of the other parties. Upon this submission, the court found that the lien was paramount, and entered an interlocutory decree to that effect. In addition to this, on the 6th June, 1877, the parties stipulated, for the purposes of evidence in the cause, that the South and North Alabama Company was the owner of the bonds and the mortgage to secure them. It is thus apparent that, for the purposes of the suit, by the understanding of all the parties, that company represented the claim which was being enforced in its name, and was entitled to take such steps as might be deemed necessary for the protection of those in whose behalf it was acting.

A writ of mandamus may issue directing the circuit judge, or the Circuit Court of the United States for the Middle District of Alabama, to allow the appeal prayed for as of July 3, 1877, and, upon the allowance of the appeal, to accept as of the same date good and sufficient security for a supersedeas if offered; and it is

So ordered.