MILWAUKEE AND MINNESOTA RAILROAD CO.
v.
SOUTTER
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In this railroad foreclosure suit, the Milwaukee and Minnesota Railroad Company appealed an order denying its motion to discharge a court-appointed receiver and place the company in possession of the eastern division of its railroad pending the foreclosure proceedings. The Supreme Court dismissed the appeal, holding that a trial court's discretionary decision whether to remove a receiver and appoint a replacement is not subject to appellate review.
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Mr. Justice Nelson delivered the opinion of the court.
This is an appeal from an order made in the suit of Soutter and Bronson, trustees-of the second mortgage bonds of the La Crosse and Milwaukee Railroad Company, against the mortgagor and others, including the appellants, as defendants, in the court below, for the foreclosure of the mortgage. The appellants made a motion in the Circuit Court of the United States for Wisconsin, in which the suit was pending, for an order discharging the receiver that had been previously appointed at the instance of the complainants, and to put the petitioners and present appellants into the possession of the eastern division of the road, with its appurtenances, to be run under their superintendence and control pending the suit of the foreclosure.
Mr. M. H. Carpenter for appellant. .
Mr. N. A. Cowdry and Mr. N. J. Emmons for appellee.
A like motion was made in the suit on the same day before the United States District Court, there being some doubt expressed* whether, under the act of Congress, July 15, 1862, extending the circuit court system to the State of Wisconsin, and the amendment of the same, March 3, 1863, (12 St. at Large, pp. 567-807,) the foreclosure suit then pending in the District Court had been transferred to the Circuit. This court have decided at the present term that the suit had been thus transferred. The motion in the District Court was denied, and an appeal taken to this court, which we have just disposed of.
The motion in the circuit, which is now before us on appeal, was also denied, and we need only say that one of the grounds for dismissing the appeal in the previous case is applicable to this, namely, that the order, in effect, refusing to remove a receiver and to appoint another, rests in the sound discretion of the court, and which is therefore not the subject of an appeal.
The. appeal is therefore dismissed.
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Maxwell v. Enter. Wall Paper MFG. Co., 131 F.2d 400 (3d Cir. 1942)…ex parte appointment of a receiver, a showing of the “gravest emergency and of peril immediately threatening the security and safety of property * * * ”). (Italics added.) Milwaukee & Minnesota R. Co. v. Soutter, 3864, 154 U.S. 540, 14 S.Ct. 1158, 17 L.Ed. 604; Fosdick v. Schall, 1878, 99 U.S. 235, 253, 25 L.Ed. 339; Kingsport Press, Inc., v. Brief English Systems, Inc., 2 Cir., 1931, 54 F. 2d 497, certiorari denied, Owen v. Kingsport Press, 1932, 286 U.S. 545, 52 S.Ct. 497, 76 L.Ed. 1282. McDougall v. H…
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Tower Hill-Connellsville Coke Co. of W. Va. v. Piedmont Coal Co., 64 F.2d 817 (4th Cir. 1933)…573; Hutton v. Scarborough Cliff Hotel Co., 2 Drew & S. 514; Brewer v. Boston Theatre, 104 Mass. 378; Kean v. Johnson, 9 N. J. Eq. 401; Rollins v. Clay, 33 Me. 132; Clinch v. Financial Corp., L. R. 4 Ch. App. 117; Clearwater v. Meredith, 1 Wall. 25 [17 L. Ed. 604]. “When a number of stockholders combine to constitute themselves a majority in order to control the corporation as they see fit, they become, for all practical purposes, the corporation itself, and assume the trust relation occupied by the corpora…
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Ætna Life Ins. Co. v. Phillips, 69 F.2d 901 (10th Cir. 1934)…answer stated a good defense to the petition. The judgment is reversed and the cause remanded with instructions to reinstate the second amended answer, and to proceed further in accordance with this opinion. Clearwater v. Meredith, 1 Wall. 25, 42, 17 L. Ed. 604; Poling v. Jeffords, 56 App. D. C. 88, 10 F.(2d) 653; Pollack v. Meyer Bros. Drug Co. (C. C. A. 8) 233 F. 861, 864; Wagner v. Thorpe, 151 Okl. 142, 2 P.(2d) 1027. See, also, cases cited in Note 2. Colgrove v. Hayden Lake Irr. Disk, 40 Idaho, 489, 2…
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