JOHNSON et al. v. MILLER et al., 96 F. 271

SIMOETQN, Circuit Judge (after stating the facts as aboye). We are not called upon to express any opinion as to the expediency of the purpose of the petitioners. However desirable may be the end they have in view, we can only inquire as to the errors committed by the court below. The prayer of the petition was addressed largely to the discretion of the court. It was in the position to know how the litigation was affecting, the rights of all parties interested in it, and to decide how the grant of the prayer of the petition would affect these rights. Linda H. Johnson had filed a creditors’ bill.

She was acting, not only in her own behalf, but she was asking that others should come in. Every one of the orders and decrees was passed either on her motion or with her acquiescence. She persevered in her applications to the circuit court of the Western district of Virginia, after the proceedings in the federal court in Tennessee, the chancery court in the same state, and in the two state courts in the .state of Virginia; and in all this the Southern Building & Loan Association was a party, fully concurring.

At their instance, the court below assumed the administration of the affairs of this insolvent corporation within its jurisdiction. The receiver was appointed, and gave his bond, assuming all his duties. The commissioner was named, who called in the creditors, naming time and place. Creditors came in, their claims were presented, and aré under adjudication. The parties originally on the record have lost their control of the case. Others, at their instance, have been invited or forced to come in, and these are vitally interested in the administration which the court is exercising.

Wien, therefore, these original parties to the record now come in and ask the court to reverse or modify its orders, to dissolve its injunction, to stay its hand, stop here, and surrender its administration of the rights involved in the cause, they are not the only parties whose wishes must be consulted. The stockholders ,and creditors who have been called into that court, and who have been forbidden to go elsewhere, must be consulted.

As they are in no way represented in this petition, the court, at the least, must be convinced that it is for their interest, as well as that of the petitioners, that the prayer of the petition be granted. The record does not inform us on that point. The court below, however, was in possession of the whole case.

It had knowledge of the number and character of the claims presented under its order, and of the condition of the litigation therein. 'It was the duty of the court to exercise its discretion in this matter, and, if it were of the opinion that the rights of any other party would be prejudiced by granting the prayer of the petition, i(: could properly reject it; especially so as these parlies are not before the court on their own motion, but in obedience to its process, as they have been prevented by its order from seeking relief elsewhere, and have been compelled to be where they are.

The court below1 did exercise its discretion, and dismissed the petition, notwithstanding the wish of the parties to the record and their attorneys. We are of the opinion that in this case the court below has committed no error. The principle upon which the court acted is stated in Daniell, Ch. Prac. (5th Am.

Ed.) p. 791: “After a decree has been made of such a kind that other persons besides the parties on record are interested in the prosecution of it, neither the plaintiff nor defendant, on the consent of the oilier, can obtain an order for the dismissal of the bill.” This is cited and approved by (he supreme court of the United States in Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U. S. 713. 3 Sup. Ct. 594. The decree appealed from is affirmed.