RIDGE v. MANKER et al., 132 F. 599

HOOK, Circuit Judge, after stating the case as above, delivered the opinion of the court. An appellate court may avail itself of authentic evidence outside of the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscarriage of justice, to avoid a useless circuity of proceeding, to preserve a jurisdiction lawfully acquired, or to protect itself from imposition or further prosecution of litigation where the controversy between the parties has been settled, or for other reasons has ceased to exist. Chamberlain v. Cleveland, 1 Black, 419, 17 L.

Ed. 93; Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067; Wood Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379 ; Board of Liquidation v. Railroad Co., 109 U. S. 221, 3 Sup. Ct. 144, 27 L. Ed. 916; Dakota v. Glidden, 113 U. S. 222, 5 Sup. Ct. 428, 28 L. Ed. 981; Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620, 33 L. Ed. 1016; Washington and Idaho Railroad Co. v. Coeur D’Alene R. & N. Co., 160 U. S. 101, 16 Sup. Ct. 239, 40 L. Ed. 355; Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. 794, 44 L. Ed. 926. This doctrine was applied by this court in Ransom v. City of Pierre, 101 Fed. 665, 41 C. C.

A. 585, a case which presented features similar to the one at bar. Manker sought a cancellation of the mortgage. The association and the receivers appeared, and sought its foreclosure. The decree was for cancellation. The Iowa state court in which the suit was brought was a court of general jurisdiction, having original cognizance of causes at law and in equity. It is clear that the facts set forth in Manker’s petition and the relief desired comprised a subject-matter of litigation well within the judicial province of that court.

The character of the case presented is the determining factof, and not whether the conclusions of the court upon the evidence were rightfully reached or otherwise. Did the Iowa state court have jurisdiction of the Missouri receivers ? A receiver is an officer of the court appointing him. He is its immediate representative in the custody and administration of the property of which it has taken possession. His custody is the custody of the court.

A suit against him is a suit against the receivership, and, except as authorized by statute, if instituted without permission of the court, is an unwarranted interference with the exercise of its exclusive jurisdiction. A court having lawfully acquired the possession of property through the appointment of a receiver may reserve to itself the determination of all questions affecting it and pertinent to the proper administration thereof, or it may permit such questions to be judicially settled in other tribunals.

Passing the statutory exceptions, no suit can be elsewhere maintained against the receiver without the permission of the court from which he derives his authority. Davis v. Gray, 16 Wall. 203, 217, 21 L. Ed. 447; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672; McNulta v. Lockridge, 141 U. S. 327, 332, 12 Sup. Ct. 11, 35 L. Ed. 796; Texas & Pacific Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Porter v. Sabin, 149 U. S. 473, 13 Sup. Ct. 1008, 37 L. Ed. 815; Farmers’ Loan & Trust Co. v. Railroad Co., 177 U. S. 51, 61, 20 Sup. Ct. 564, 44 L. Ed. 667.

In view of these well-settled principles the appellant contends that it was essential to the jurisdiction of the Iowa court, whose decree of cancellation was pleaded in bar, that its record show affirmatively the procurement of permission to sue the receivers. In effect, the contention is that a decree against the receivers of another court is a nullity in the absence of an affirmative recital that leave to sue them was obtained, and that it may be so declared in a collateral proceeding. The rule is otherwise. McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300; Dowell v. Applegate, 152. U. S. 327, 14 Sup.

Ct. 611, 38 L. Ed. 463. This is not a case in which receivers, sued without leave, refrained from entering an appearance and making a defense. The record before us shows that they voluntarily appeared in the Iowa court, defended upon the merits, and invoked the jurisdiction of the court for affirmative relief. No objection to the jurisdiction appears, and, under the circumstances, the presumption is a natural one that none was made. Upon their appeal to the Supreme Court of the state they for the first time claimed their immunity from suit, but while doing so still contested upon the merits.

And then the Missouri court from which they derived their authority allowed their expenses in both courts, and the expenses and fees of their counsel, and ordered them paid. The conviction is unavoidable that these official acts of the receivers were known to the court appointing them; that their course was acquiesced in and approved, and found ultimate judicial confirmation in the passing of their accounts and the accounts of their counsel.

That highest degree of courtesy and good faith which should mark the relations between courts of different jurisdictions, and which is so essential to the orderly administration of justice, would not be observed if it were now held, after all the things were done which appear in the record to have been done, that the Iowa court had not acquired jurisdiction of the receivers.

The district court of Taylor county, Iowa, having cognizance of the subject-matter of Manker’s suit, and under the special facts appearing in the record having jurisdiction of the defendants, its decree of cancellation of the mortgage was properly pleaded in bar in the court below. The decree of the Circuit Court is affirmed.