JACK et al. v. STATE ex rel. CUNNINGHAM et al., 102 F. 210

MORRIS, District Judge (after stating the facts as above). At the threshold of this appeal is the question whether the order of April 26, 1890, overruling the demurrer to the petition, and allowing Cunningham and others, in behalf of the state of South Carolina, to intervene, and requiring Jack, Williams, and Beattie to give bond in the penalty of §25,000 to comply with the future order of the court with regard to the proceeds of the rails received by them, is appealable.

In argument the ground principally relied upon to support the right to appeal from this order, which decides no right and is in its nature interlocutory, is based upon the act of February 18, 1895⅜ allowing an appeal from any interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction.

It is argued that the petitioners asked in their petition that the original parties to the cause and the receiver should be perpetually enjoined from taking up and removing the rails, and that a temporary restraining order be granted until the further order of the court, and that the parties be required to replace the fails already removed; that the prayer for a temporary injunction was granted conditioned upon the execution of a bond for §5,000; that the petitioners failed to give the bond, and thereupon the order for a temporary injunction became inoperative, and the receiver proceeded to execute the original decree of the court; that when on April 26, 1899, the petitioners again invoked the action of the court, the rails had been removed and sold, and the money distributed to the parties to the original cause; that there was then nothing that a formal restraining injunction could accomplish, but that the court indirectly accomplished the same result as was sought by the petitioners in their original petition by requiring the appellants to give a bond to return the money so received, if ordered by any further order of the court; and that it was equivalent to an injunction, in that the order commanded the appellants to do a specified act.

The United States supreme court had occasion to consider a quite “similar question in Highland Ave. & B. R. Co. v. Columbian Equipment Co., 168 U. S. 628, 18 Sup. Ct. 240, 42 L. Ed. 627. Mr.

Justice Brewer, speaking for the court, thus states the question which that court was called upon to determine: “Is an interlocutory order appointing a receiver appealable from the circuit court to the circuit court of appeals, and If such n,n order, standing alone, be not appealable, does it become so by the incorporation into it of a direction to the defendant, its ofiicers, directors, agents, and employes, to turn over and deliver the property in their hands? These questions must be determined by a consideration of

section 7, c. 517, Act March 3, 1891, creating the circuit court of appeals (26 Stat. 826), as amended February 18, 1895, e. 96 (28 Stat. 666).” The opinion then comments upon Smith v. Iron Works, 165 U. S. 518, 17 Sup. Ct. 407, 41 L. Ed. 810, and In re Tampa Suburban R. Co., 168 U. S. 583, 18 Sup. Ct. 177, 42 L. Ed. 589, and continues: “But, each of those cases proceeded upon the fact that there was a distinct order granting, continuing, or dissolving an injunction.

In the case at har there is no such order. • It is true, following the order of appointment, there is a direction to the defendant, its officers, directors, and agents, to turn over to Campbell the property of which he is appointed receiver, but that is only incidental and ancillary to the receivership. * ⅞ * Indeed, the mere appointment of a receiver carries with it the duty on his part of taking possession, and the further duty of those in possession of yielding such possession.

So that as a part of an order appointing a receiver there is something in the nature of a mandatory injunction, — that is, a command to the receiver to take, and to the defendant to surrender, possession; yet such command is not technically and strictly an order of injunction.” And, in conclusion, the opinion declares: “I^would savor of judicial legislation to hold that, although congress has not authorized appeals from orders appointing receivers, the mere fact that in such an order there is a direction of a mandatory character, either expressed or implied, in respect to taking possession, makes it appealable as an order .granting an injunction.” The considerations which governed the supreme court in deciding-in the foregoing case that the order appointing a receiver, embracing, as it did, within its terms a direction to the defendant in the nature of a mandatory injunction, was not the equivalent of a technical injunction, are, it seems to us, entirely applicable to the present case.

The order of the court below overruled the demurrer, and granted the appellees leave to intervene and to move for a rehearing or review of any order or decree made in the cause, and suspended the order theretofore granted allowing the dismantling of the road, and directed the receiver to hold all the property left in his hands until further order, and, in addition, required the parties to the original cause to give bond to comply with any further order with regard to the funds already paid them by the receiver.

Applying the rules of the supreme court above cited, we do not find in the ord,er requiring the parties to the original cause to give bond anything to which the act of February 18,1895, allowing appeals from orders granting injunctions, is applicable.- It may perhaps be said, as all that the receiver and the original parties had done had been by direction and under the authority of the decrees and orders of the court, and after long delays, and after the petitioning interveners had neglected to give the bond required of them as a condition of their obtaining the injunction they had prayed for, that the order requiring the original parties to give the $25,000 bond, when they were not actors and were asking nothing, is to be regarded, under the circumstances, as an extreme exercise of judicial power.

But it does not appear that if the parties affected by the order had represented to the court that the exaction of the bond would result in hardship it would have been insisted upon. At any rate, nothing was done by way of penalty, and the matter is not now before us, for the reason that we are of opinion that the appeal was taken prematurely. Appeal dismissed for want of jurisdiction.