EASTON

HOUSTON &: T.e. RY.: CO.

execution. Stephensv. Cady, 14 How. 5Z8; Stevens 'v. Gladding, 17 How. 4{7. Statutes which undertake to give to courts jurisdiction over nonresidents, who do not come within the district for purposes either of residence or business, should neit be enlarged by too liberal construction, and in the absence of authority I must decline to make the order prayed for.' It seems further from the moving papers that Louis Bornand, who is made a defendant, has been served with process, and has appeared personally. He is a director of' the defendant corporation. 'Complainant asks for an order declaring that the service of process on defendant Bornand shallbe deemed good and sufficient· service on the defendant corporation. If tQat motion is based upon the statute already quoted, it should be de-. nied for the reasons above given. If it is contended that the defendant corporation is in fact engaged in bnsiness in this district, (as the supplementary motion papers seem to indicate,) and therefore service upon the director is service upon the· corporation, that question cannot be settled on such a motion. Unless i,t is raised by a motion On the part of the defendant corporation to set aside the service, it will be properly dis-: posed of when the court comes to enter final judgment.

EASTON

It al.11.

HOUSTON

& T. C. Ry. Co. et at, (WATERS-PIERCE On. Co., Intervenor.)

(04ircuit Oourt, E. D. TexaB. December I, 1890.)
FmAL DeCREe-REHEARING-TIME OF APPLWATION·

. At the term succeeding that at which a decree dismissing an Intervention on the merits, without prejudice, was rendered, there was a final decree in the main cause. Held that, even if the decree dismissing the intervention was not final at its rendition, it became final on the rendering of the final decree in the main causei and therefore, under equity rule 88; "that no rehearing shall be grantea 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 maybe admitted at any time before the end of the next term of the court, in the discretion of the court," a rehearing on the intervention could not be granted at the third term after the final decree in the main cause was rendered.

In 'Equity. John C. Walker, for the Waters-Pierce Oil Company. Waller T. Burna, contra. PARDEE, J. The Waters-Pierce Oil Company filed an intervention in the above·entitledcause on the 10th day of November, 1886, claiming the sum of $969 as a lien against the trust funds in the hands of the court, arising out of the earnings of the Houston & Texas Central'Railway Company for and on account bf certain oil supplies furnished the Houston & Texas Central Railway Company during the months of uary and February I 1885, and prior to the original a.ppointment of re-. ceiversin this case. This intervention, under a general order of the court theretofore made relative to petitions pro interesae BUO, was dulyre-

8;

FEDER,U R.Ij:PORTER,

vol. 44.

ferred to the special master for investigation and report. The special master, 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 fileQ.exceptions to the said report, and again on August 12, 1887, filed exceptions to the report. These exceptions and amended exeeptions. attacked the master's report on 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 he 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 inten'ention 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 oiall the mortgaged property. At the November term in 1888, following, the sale was reported of the mortgaged property, and the salecdnflrmed. On October 4, 1889, without any previous leave of the court, the Waters-Pierce Oil Com pany filed a motion to set aside the previous orders and decrees in the case, which motion, it seems, wail 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 re}'1earingin this cause, having been set down by the court at a former day of this term for hearing this day, llnd it appearing to the court that no objectionsto the granting of said motion has been filed, now, therefore, the intervenorhaving appeared by solicitor, and said motion being considered,it is or· dered by the cou rt that the said motion Le sustained, and the rehearing gran ted 9.!l April 1, 1890." . At the same time a motion WIlS 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 was ordered to pay the said claims out of any funds in his handaas receiver; but it was further ordered that the cause be held by the court as on motion for a new trial for 20 days·from that date; and thereUpOl), on the 18th day of within the 20 days, a motiop. was made to set a.siele the decree in

EASTON V. HOUSTON & T. C. RY. CO.

9

favor ofthe Waters-Pierce Oil Company, Intervenor, on the grounds lowing, to-wit: "(1) The court erred in disturbing the findings of the special master in chancery filed herein on the lOth day of JUlie, 1887. (2) The court erred in setting aside and vacating a decree entered in said cause confirming the sairl master's report; said decree being rendered after full argu llIent upon HIe 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 comt, 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 calise, 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 petiti,m of intervention be denied on the order heretofore made allowing the sallie to be vacated." This last, motion has been Ofought on before me as circuit judge, and has been argued and submitted. ' The presented is practically this: Wljos the decree of November 16, 1887, dismissing the intervention of the Waters-Pierce Oil Com,pany, without prejudice, a final decree? It disposed of the intervention on its merits, leaving the intervenor with 110 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 and, at best, might,j>erhaps, intervene again on the same cause of actioq. in this same cause. A decree is final when it determines the litiglltii)n on the merits, and leaves nothing to be done but to enforce by tion what has been determined. See St. Louis, etc., R., Co. v. Southerft Exp. CO., 108U. S. 24,2 Sup. Ct Rep. 6; Railway CO. v. Dinsmore, 108 U. S. 30, 2 Sup. Ct. Rep. 9; Ex parte Norton, 108 lJ. S. 237, 2 Sup. Rep. 490. When an intervention under a claim of a prior lien is missed, 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 thr, 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 in this case; because, at the next term fonowing the decree, a final de7 cree was rendered in the main cause, and then. if 110t before, it SeelnS clear that all decrees theretofore rendered upon interventions, whether appealable arnot, became final. The eighty-eighth equity rule provides "that no rehearing shall be alter 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 m.ay 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 not fileduntil'the fourth term of the court alter the decree soughtto be nmdered, nor until the third term of the 'court after, the final decrf'e in the main cause was rendered; and the petition or application for a rehearing was not admitted by the court until the fifth term after the decree to be redewedwus rendered, nor until the of the court after the final decree in the main cause waB'rendered. 'Un.

to

FEDERAL

vol. 44.

Bhni8Onv.SchVlten, 104 'U.S.'415;ScheU v,, Dodge, 107 U. S. 630, ,2 830; PhiUip8V., Negley,117 U. 665,6 Rep, 901; Cannonv. U. Sup. Ct. Rep. 1064.; , ;," i 88 is thus absolute regard fo;thepower of'the to 'grant a renelu1:ng in tll:luitycauses in which lili lippeal lies, after the tetmat'whicih'the final decree is entered and recorded, it seems to'be 'actually with regard to the power of the 'court to grant a rehearing in iriwlHch Ii? appeal liesa(;er term of the court folloWll'lg the term in whlCh the final decree.was rendered. As .the 'coUrt' was withoutpower or autl)O'rity to grll.ntthe,. application, it to,fbllo'IV conclusively tha:tthe order rehearing, and the sUbsequent proceediflgs thereunder, were void;' It' is therefore ordered, adjudge4, and decreed that all the proceedings 'had in the matter onhe Witters-Pierce oil Company intervention in tbis cause, since the adjourni;neritofthe Mlirchterm, 1888, 'be "and thesatne are vacated and anhulled.', It is further ordered that tlieWaters-Pierce, Oil Company be t6 pay au costs since the,March 1888,

[language of tlle equitr fl,lle above quote4, it seems clear that, when the petition for rebearing was admitted by the court, the cO'\1rt was power or a)Jthority to grant the appliGation. In Roemer v;: Simon, U.8.149, the supreme, court, in considering the effect of equity rule 88 in ,an appealable case, ;say: ' '''The cdurt below cannl'ltgrantarehearing after the term at which the final decree was rendered.'1 ' . " , lusticeliARLAN,in the case of Morgan'8, etc., 00. v. Texa8 Cent. 32 Fed. Rep. 530. says; , ..It is an estab\lshed principle that,exe,ept upon bills of, review in cases in equity,upon;wTits of error coram 'Dobis in cases at law, or upon motions 'Which,' in practice. have been substituted fol' the latter remedy, no court ·can reverse or annul its 'ownfinaldecision or jUdgment for errors ,of faet or law, the ter,m at which they have been rendered. unless mistakes; 'frttm It follows that Iiochi\nge or modification can he made which may SUbstantially vary 01' affect it in any matel'ialtlling.' .. ' " '11.,&,8;, 12··pet. 4SS;Banlc't;Moq8,6 How. 31;

''

',,', '

;

i

,

', ' , " '

;

,·

,

I

'

'"

, .

UNITED STATES'll. MA.SICH

.

"

et ale

I '.

(CirCuit Court. E. D. LouiStana. November, 1800.)
· .· .' , ',' ·J; '

RlIoBmRS-WItBN'

IN :POSSESSION. : i' the mortgampropertr,:.moe1ver will , ' , Dot in favor,of one cllpming Ijo.subsequenI lien. thereOD by seizure un" 'dar execution, but the clfu.rt will comllel the applloatioilofthe rents and profits of 'Ule property tothll of the mortgage, by injUDQtiou.
, : (:"; j

1"AtJ..aw. '

·i!

j

.

.

')!" { ,

;

:;

a receiver·

'i,1

J"