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.
J. This application has been presented on the hypothesis that the defendant corporation had not appeared, or through default had not been allowed to appear. At the request of the COUl't it has lleen presented before the decision of the application made by the defendant corporation itself, in order tlHLt the whole subject might Le, fully considered at the same time. As intimated in the opi nion heretofore given, individual stockholders or bondholders who are not content with the action had in their behalf by their trustees or others charged with their interest, should take, with due diligence, for their individual protection, the course required in such cases, becoming individually responsible for the consequences of the litigation. The views stated in Hawes v. Oakland, 104 U. S. 450, and the rulfl -of the supreme court consequent thereon, fully indicate what should be done in all such cases. There may be many technical considerations why, at this stage of the proceeding, said individual applicant should not be permitted to appear aHd defend in the form by him presented. The court wishes, however, to place its decision on broader grounds. The defendant corporation, of which he was a shareholder, and the trustee representing his bonded interests, have been before the court for 16 months, assenting to and causing its action. At this time, when the court is about finally to close the whole case, there is no equity, under any allegations by him made to justify his appearance for and instead of the railroad and trust corporations, to open and prolong a litigation to the apparent injury of all concerned, without a tender' on his part to become responsible either for what has occurred or what from his delay may hereafter occur. The records of this court show that the continnance of the receivership involves constant loss to the bondholders and others as to their dues. At whose expense, therefore, is said railroad to be necess9,rily operated hereafter? His position, therefore, after the long delay named, is no better than that of the corporation itself. Application denied.
(Circuit Court, D. 0l'egon.
SUIT TO QUIET TITLE-PAnTIES.
Where a number of persons claim undivided interests In real propert)' adversely to one in possession of the same, the latter nlay maintain a suit. to quiet his title against any or all of such claims, and neither of said persons or adverse claimants is a necessary party to a suit for that purpose against the other.
PLEA IN ABATElIfENT FOR DEFECT OF PARTIES TO A BILL.
A plea to a hill for a defect of parties consists of new matter, and is callcd a