An interlocutory order appointing a receiver is not appealable
from the circuit court of the United States to the circuit court of
appeals, and does not become so by the incorporation into it of a
direction to the defendant, his agents and employees to turn over
and deliver to the receiver the property in his or their hands.
The facts in this case are as follows:
On April 5, 1897, upon a bill duly filed by the Columbian
Equipment Company, an interlocutory order was entered in the
Circuit Court of the United States for the Northern District of
Alabama appointing Phillip Campbell receiver of the property of the
Highland Avenue and Belt Railroad Company. Such order, besides
the
Page 168 U. S. 628
mere matter of appointment and a description of the property,
contained the following provisions:
"The said receiver is hereby authorized and directed to take
immediate possession of all and singular the property above
described, wherever situated or found, and to continue
systematically, in the same manner as at present, the business and
occupation of carrying passengers and freight and the discharge of
all the duties obligatory upon the said company."
"And the said Highland Avenue and Belt Railroad Company, and
each and every of its officers, directors, agents, and employees,
are hereby required and commanded forthwith to turn over and
deliver to such receiver, or his duly constituted representative,
any and all notes, accounts, money, or other property in his or
their hands, or under his or their control."
"Said receiver is hereby fully authorized to continue the
business and operate the railway of said company, and manage all
its property at his discretion, in such manner as will, in his
judgment, produce the most satisfactory results consistent with the
discharge of the public duties imposed on said company, and to
collect and receive all income therefrom, and all debts due said
company of every kind, and for such purpose he is hereby invested
with full power, at his discretion, to employ and discharge and fix
the compensation of all such officers, counsel, managers, agents,
and employees as may be required for the proper discharge of the
duties of his trust."
"Said receiver is hereby fully authorized and empowered to
institute and prosecute all such suits as may be necessary in his
judgment to the proper protection of the property and trusts vested
in him, and likewise defend all actions instituted against him as
receiver, and also to appear in and conduct the prosecution or
defense of any and all suits or proceedings now pending in any
court against said company the prosecution or defense of which will
in the judgment of said receiver be necessary and proper for the
protection of the property and rights placed in his charge and for
the interests of the creditors and stockholders of said
company."
"Said receiver is hereby required to give bond in the sum of
$10,000, with personal security, or the security of some
Page 168 U. S. 629
responsible guaranty and indemnity company satisfactory to the
clerk of this court, for the faithful discharge of his duties, and
is also required to make and file full reports in this court
quarterly."
"And the court reserves the right, by orders hereinafter to be
made, to direct and control the payments of all supplies,
materials, and other claims, and in all respects to regulate and
control the conduct of said receiver."
The railroad company appealed from this order to the Circuit
Court of Appeals for the Fifth Circuit, which court, on June 16,
1897, certified to this Court the following question:
"The question upon which instructions are desired and
respectfully asked is: was the decree appointing Campbell receiver,
above referred to, susceptible of being appealed from on the ground
that the said order embraced within its terms an injunction or the
necessary equivalent of an injunction?"
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Is an interlocutory order appointing a receiver appealable from
the circuit court to she circuit court of appeals? And if such an
order, standing alone, be not appealable, does it become so by the
incorporation into it of a direction to the defendant, its
officers, directors, agents, and employees, to turn over and
deliver to the receiver the property in their hands? These
questions must be determined by a consideration of section 7 of the
Act of March 3, 1891, c. 826, creating circuit courts of appeal, 26
Stat. 517, as amended February 18, 1895, c. 96, 28 Stat. 666. That
section provides:
"That where, upon a hearing in equity in a district court or a
circuit court, an injunction shall be granted, continued,
Page 168 U. S. 630
refused, or dissolved by an interlocutory order or decree, or an
application to dissolve an injunction shall be refused in a case in
which an appeal from a final decree may be taken under the
provisions of this act to the circuit court of appeals, an appeal
may be taken from such interlocutory order or decree granting,
continuing, refusing, dissolving, or refusing to dissolve an
injunction to the circuit court of appeals,
provided that
the appeal must be taken within thirty days from the entry of such
order or decree, and it shall take precedence in the appellate
court, and the proceedings in other respects in the court below
shall not be stayed unless otherwise ordered by that court during
the pendency of such appeal,
and provided further that the
court below may in its discretion require, as a condition of the
appeal, an additional injunction bond."
Under this section, it has been decided that when an appeal is
taken from an interlocutory order or decree granting or dissolving
an injunction, the whole of such interlocutory order or decree is
before the court of appeals for review, and not simply that part
which grants or dissolves the injunction, and that, on the hearing
in the court of appeals, that court may consider and decide the
case upon its merits.
Smith v. Vulcan Iron Works,
165 U. S. 518;
In re Tampa Suburban Railroad Company, ante, 168 U. S. 583. But
each of those cases proceeded upon the fact that there was a
distinct order granting, continuing, or dissolving an injunction.
In the case at bar, there is no such order. It is true, following
the order of appointment, there is a direction to the defendant,
its officers, directors, and agents, to turn over to Campbell the
property of which he is appointed receiver, but that is only
incidental and ancillary to the receivership. This is obvious, for
if the court subsequently entered an order in terms setting aside
only the appointment of the receiver, all the other parts of the
original order would immediately and without specific mention
disappear and cease to have any force. Indeed, the mere appointment
of a receiver carries with it the duty on his part of taking
possession, and the further duty of those in possession of yielding
such possession. So that while, as a part of an
Page 168 U. S. 631
order appointing a receiver, there is something in the nature of
a mandatory injunction -- that is, a command to the receiver to
take, and to the defendant to surrender, possession -- yet such
command is not technically and strictly an order of injunction.
The last proviso in the section emphasizes this distinction:
"The court below may, in its discretion, require as a condition of
the appeal an additional injunction bond." The bond is described.
It is not a bond to secure against injuries which may result if a
receiver is wrongfully appointed or discharged, but is technically
an injunction bond -- that is, a bond to answer for damages in case
of a wrongful order either granting, continuing, or vacating an
injunction. Receivership implies possession, and, if no bond can be
required to guard against loss from taking or surrendering
possession, it is difficult to perceive the significance of an
additional injunction bond in a receivership case. The question is
not whether included in an order appointing a receiver there may
not be, either expressed or implied, some directions of a mandatory
character -- something in the nature of an injunction -- but
whether Congress in this legislation provided for appeals in cases
other than those in which an injunction, technically speaking, is
either the sole or a principal part of the order or decree. Orders
granting injunctions and orders appointing receivers are, in the
common understanding of the profession, entirely independent. The
distinction between the two is clearly recognized in the textbooks
and in the reports. We have separate treatises on injunctions and
on receivers. The separation between them is one which runs through
the law, and while it is true that the mandatory features which,
either expressly or by implication, attend orders appointing
receivers are sometimes made the matter of discussion in treatises
on receivers or the subject of comment in decisions concerning
receivers, yet the distinction is never forgotten. Familiar, as it
must be assumed to have been, with this generally recognized
distinction, Congress, if it had intended that appeals should be
allowed from orders appointing receivers as from orders in respect
to injunctions, would doubtless have expressly named such orders.
Its omission of the one and the mention
Page 168 U. S. 632
of the other is a clear declaration that only one should be the
subject of appeal, and the other not. And it would savor of
judicial legislation to hold that, although Congress has not
authorized appeals from orders appointing receivers, the mere fact
that in such an order there is a direction of a mandatory
character, either expressed or implied, in respect to taking
possession makes it appealable as an order granting an
injunction.
For these reasons, we are of opinion that the question
should be answered in the negative, and it will be so certified to
the court of appeals.
