00.17. TEXAS & ST. L.
plainant to use that name to designate its property; t!1at by doing so it has acquired a trade which is valuable to it; and that the defendant's acts are fraudulent and create a dishonest competition detrimental to the complainant. Upon the argument of this motion the impression was entertained that the "Piza label No.2" was not such a simulation of the complainant's label as would be likely to mislead purchasers. Upon further consideration this impression has been reo moved. It is not unreasonable, in view of the defendant's purpose to deceive the public by adopting this label, to resolve any dou bt which may remain in favor of the complainant. The motion for an injunction is granted.
CENTRAL TRUST Co. and another v. TEXAS & ST. L. By. Co. and others.!
(Circuit COU1·t, E. D. Missouri.
June 24, 1885.)
RAILROAD MORTGAGES-FORECLOSURE SUIT-DELA1: IN ANSWERING-ExPENSES OF HECEIVEHSHIP. Where 8 foreclosure suit was instituted against 8 railroad company and a
receiver was appointed, and intervening demands were adjudicated and receiver's certificates issued for the preservation of the property, which was ru;;,. at a loss,-all with the defendant's consent,-and ahout 16 months after the appointment of a receiver, and when the case wa3 auout to be closed, the defendant, without producing any afiidavits excusing the dda.v or explaining its original consent, and without offering to provide for the interest due and expenses incurred, and which might thereafter be incurred hy the receiver, requested leave to file an answer which set up irrelevant issues: held, that the application must he denied.
oemble, that courts have the right, where their interposition is invoked, to hold that the proceedings are instituted in good faith; and that, where a court takes possession of property in foreeJosure proceeding_, it should not hold possession and administer it through its receivers for other than the original purpose disclosed in the suit.
In Equity. Application of defendant corporation for leave to file to original bill. Bntler, Stillman <t Hubbard and Elcneious Smith, for complainant. Dyer, Lee <t Ellis, for defendants. TREAT, J. The original bill in this case was filed January 12, iS84, on which day an interlocutory decree was entered by Judge MCCRARY, reciting the assent of the defendant corporation thereto, and appointing a receiver with the authority therein named. Under that decree and appointment the court has hitherto proceeded, adjudicating intervening demands and authorizing the issue of the receiver's certi. ficates for the preservation of the property in the interest of all concerned. After repeated intimations from this court that the foreI
Beportcd by Benj F. Rex, Esq., of the St. Louis bar.
closure proceedings must be brought to final decree, and, if need be, the property sold and all interests connected therewith finally adj l1sted, the defendant corporation asked leave (out of time) to file an a1l8wer. The decision of the court with respect to said application was made on the first day of this month. l The terms prescribed in said lIt'cision have not been complied with. No excuse is given why f:mid defendant corporation, after assenting to said interlocutory (mler, and appearing herein as early as January 12, 1884, now seeks to disturb all that has been done both under its express and implied assent. Nor does it, despite the original default of interest and subsequent default, and the expenses incurred by the issue of receiver's certificates and otherwise, for the preservation of the property, state that it is ready and willing to provide therefor. It is obvious from the records of the court that no such proffer could be made, and consequently that the present application can only produce useless delay, to the great injury of all concerned, inasmuch as the administration of the road by the receiver has not heretofore met, and is not likely hereafter to meet, past and accruing obligations. If the receivership is to be continued under accruing defaults, some party litigant should become responsible therefor. The United Stales circuit court in Texas has already ordered the sale of so much of this road on August 4th, next, as is within its jurisdiction. It is apparent that it is necessary for the interest of all parties that the sale of 80 much of said road as is within the jurisdiction of this court should be made at the same time. There is imperfectly disclosed in the various papers presented, and suggestions made, that there had been disappointments and differences of views among those who hoped to rescue the road, and possi. bly prevent a fOl"eclosure sale. With such outside negotiations and controversies this court has nothing to do. Its jurisdiction has been invoked with the consent of all concerned, and exercised for more than 16 months, in the course of which the property has been preserved and obligations incurred under its express authority. It is now too late for the court to reverse all its actions and prolong this controversy without security offered, to the advantage of no one. Courts, when their interposition is invoked, have the right to hold that the proceedings are instituted in good faith. When acting accordingly, and appointing receivers, they ought to insist on as early adjudication as the due course of practice exacts, and not to hold possession and administration of the property through receiverships for other than the original purposes disclosed in the suit. It is no part of iheir functions to run railroads or business enterprises for other than the short period pending the filing of the bill and the final decree. All such cases should be speeded to as early a conclusion as practicable and at the least possible expense. The case before the court furnishes an apt illustration. If the ap·
23 FED. REP. 846.
TRUST CO. 11. TE.:US &: ST. L. RY. CO.
plication of the defonc1ant corporation, under the circumstances stated, is to be granten, a court may be betrayed into administering railroads and issuing obligations for an indefinite period of time regardless of the bad faitb of the parties to the suit. The terms heretofore prescribed with respect to submitting an application by this defendant corporation have not been complied with, inasmuch as irrelevant issues are again brought forward, and no affidavits excusing the delay or explaining its original consent are produced. It must be further con· sidered that the pretense of non-forfeiture has no foundation in fact. Therefore, under the affidavits submitted, the application is unwarranted as to the merits. Application denied.
CENTRAL TnuST Co. and another v. TEXAS & ST. L. By. Co. and others. 1
(Oircuit OOU1't, E. D. Missouri. June 24, 1885.)
RAILROAD MORTGAGES BY BONDHOLDER. FORECLOSURE SUITS DELAY IN ANSWERING DEFENSE
\Vhere a foreclosure suit was instituted against a railroad company, and a receiver was appointed, with the defendant's consent, and intervening claims were adjndicated, and the road was run at a loss by the receiver, and receiver's eertificates were issued for the preservation of the property, and after the defendant had been refused leave to file an answer, and more than 16 months after the receiver's appointment, and when the court was about to close the whole case, a bondholder appeared, and without any tender on his part to become responsible for what had occurred, or what might from his delay thereafter occur, stated that there had been no default when the foreclosure suit was instituted, and asked leave to appear and defend, held, that his position was no better than that of the defendant, and that his application could not be granted.
In Equity. The course followed by the defendant herein is explained in the opinions· delivered upon applications for leave to file an answer, reported in 23 FED. REP. 846, and ante, 151. The applications of the defendant having been denied. Mr. Bagnell now appears am! states in substance that he holds bonds of the defendant; that the foreclosure suit was instituted without any default on the defendant's part in the payment of interest or otherwise; that a sale of the road would result in a great loss to the bondholders; and that an application by the defendant for leave to file an answer has been refused; wherefore Mr. Bagnell asks leave to appear and defend. Jeff. Chandler, for Bagnell. Eleneious Smith and Butler, Stillman Hubbard, for complaillant. Dyer, Lee Ellis. for defendant.
lReported by Bellj. F. Rex, Esq., of the St. Louis bar.