Hovey v. McDonald
109 U.S. 150 (1883)

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U.S. Supreme Court

Hovey v. McDonald, 109 U.S. 150 (1883)

Hovey v. McDonald

Argued October 10, 1883

Decided November 5, 1883

109 U.S. 150

Syllabus

A, being entitled to a fund in the hands of the agent of Great Britain before the Mixed Claims Commission of 1873, B, his assignee in bankruptcy, filed

Page 109 U. S. 151

a bill against him and C (C claiming the fund as purchaser), to restrain them from collecting the money. A restraining order first, and then a preliminary injunction, were issued. D was then appointed receiver of the fund. Meanwhile, E commenced suit in the same court against A and C, claiming one-fourth of the fund, and obtained preliminary injunction restraining them from collecting more than three-fourths. Subsequently an order was made in B's suit in which, after reciting that it was made by consent of parties in both suits, both restraining orders were vacated, payment of one-half of the fund was ordered to C discharged of claims of the plaintiffs in either suit, and the payment of the other half was ordered to D, and D was directed to hold it subject to the claims of B and E. This decree was carried out. Both bills were demurred to, and in each suit decree of dismissal was entered at special term on the demurrer. In B's suit, appeal was taken and the decree was affirmed. In E's suit, the decree of dismissal was entered on the 24th June, 1875, and an appeal was taken on the same day. On the 28th of the same June, the decree was amended by adding an order that the receiver pay the fund to C, and notice thereof was at once given to the receiver with demand of payment. The receiver repaired to court and asked the court what he should do. The court directed him to obey the decree. He then surrendered the fund to C. E's appeal was perfected on the 12th July by filing an appeal bond. Judgment was reversed on appeal, and an order entered that the receiver should pay the money into court. Failing to do this, he was adjudged in contempt, and an order issued for an accounting. The auditor took testimony and returned it with a report that the receiver had done his duty in paying the money to C. This report being confirmed, an appeal was taken from that decree. The receiver moved to dismiss the appeal on the ground that he was not party to the suit.

Held:

1. That though the receiver was not party to the suit, he was principal party to a side issue which had arisen in it, which was appealable, and that the judgment upon it was final, and the appeal was properly taken.

2. That under the rules and practice of the Supreme Court of the District of Columbia, the suspensive force of the appeal in E's case was not operative until the filing of the bond.

3. That the completing of the decree in that suit by amendment on the 28th June was within the power of the special term.

4. That these proceedings against the receiver being in equity, are not governed by the rules regulating a supersedeas of execution.

5. That a decree in equity dissolving an injunction is not affected by a supersedeas, unless the court below order the continuance of the injunction pending appeal. Whether that should not have been done in this case, quaere.

The facts are fully stated in the opinion of the Court.

Page 109 U. S. 152

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