Milwaukee Railroad Co. v. Soutter & Knapp,
72 U.S. 660 (1866)

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U.S. Supreme Court

Milwaukee Railroad Co. v. Soutter & Knapp, 72 U.S. 5 Wall. 660 660 (1866)

Milwaukee Railroad Co. v. Soutter & Knapp

72 U.S. (5 Wall.) 660


The act of confirming or setting aside a sale made by a commissioner in chancery, involving, as it often does, the exercise of a very delicate judgment and discretion, cannot be regarded as a mere control of the ministerial duties of an officer in the execution of final process.

Hence, under the case of Bronson v. La Crosse Railroad Co., 1 Wall. 405, here approved, such an act belonged, under the Congressional statutes of July 15, 1862, and 3 March, 1863, 12 Stat. at Large 576 and 807, to the Circuit Court of Wisconsin, and not to the district court, even though the sale was made under a decree of foreclosure in the last-named court, rendered before the Act of July 15, 1862, and when, therefore, the district court was possessed of full circuit court powers.

This was an appeal by the Milwaukee & Minnesota Railroad Company from an order of court confirming a sale made by the marshal under a decree of foreclosure of a mortgage on the western division of the La Crosse & Milwaukee Railroad.

The facts out of which the appeal grew were these:

The original decree of foreclosure was rendered by the District Court of Wisconsin, then possessing full circuit court powers, on the 13th of January, 1862, and on the 2d of October, 1862, the marshal made a sale under that decree. In the meantime, to-wit, on the 15th July, 1862, Congress, by an

Page 72 U. S. 661

act of that date, had established a circuit court for the district of Wisconsin, whereby all causes then pending in the district court which might have been brought or which could have been originally cognizable in a circuit court were transferred to the circuit court and the district court was deprived of all circuit court powers. The marshal therefore returned the report of his sale into the circuit court. This was on the 6th day of October, 1862.

After several orders partially confirming the sale, the circuit court, January 17, 1863, set it aside and ordered the marshal to sell again according to the original decree. On the 25th of April thereafter, the marshal made another sale.

Congress, however, on the 3d March, 1863, had passed a statute authorizing the district courts where they had rendered final judgments or decrees, prior to the act of July 15, 1862, in cases which might have been brought, and could have been originally cognizable in a circuit court,

"to issue writs of execution or other final process or to use such other powers and proceedings as might be in accordance with law, to enforce the judgments and decrees aforesaid."

Acting under this law, the marshal reported this sale to the district court, and that court made an order of confirmation. The appellants here applied to the circuit court for a rule on the marshal to make a report of his sale to that court, which application was refused.

They now appealed from these orders of the circuit and district courts and sought their reversal on the ground that the district court had no power to act in the matter of the confirmation of the sale, and that it properly belonged to the circuit court.

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