Tampa Suburban Company
[585]

in the same manner as at present, and discharge all the public duties obligatory upon the defendants or either of them,' thus continued:  'Each and every of the officers, directors, agents, and employees of the said defendants, or either of them, are hereby required and commanded forthwith, upon demand of the said receiver or his duly-authorized agent, to turn over and deliver to the said receiver or his duly-constituted representative all the property of the defendant companies above mentioned, and all books of accounts, vouchers, papers, deeds, leases, contracts, bills, notes, accounts, moneys, and other property in his or their hands or under his or their control, and each and every of such directors, officers, agents, and employes are hereby commanded and required to obey and conform to such orders as may be given to them from time to time by said receiver or his duly-constituted representative in conducting the operation of the said property and in discharging his duty as receiver, and each and every of such officers, directors, agents, and employees of the defendant companies, or either of them, are hereby enjoined from interfering in any manner whatever with the possession or management of any part of the property over which the receiver is hereby appointed, or from interfering in any way to prevent the discharge of the duties of such receiver.'  The receiver was then authorized by the order to operate the street-railway system and other property, with the usual provisions in that regard, being required to give bond to be approved by the clerk of the court, or by a judge thereof, conditioned for the proper discharge of his duties. The order concluded: 'And it is further ordered that the original and supplemental bills in this cause, and all exhibits, affidavits, and other papers filed therein, be transferred to and filed in the clerk's office, at Tampa, Fla., at which place all process shall be returnable.'  This order was transmitted by the circuit judge by letter from Wadsworth, Ohio, under date August 4, 1897, to the clerk of the circuit court at Jacksonville, with directions to file it, which letter informed the clerk that the circuit judge

[586]

had sent by express to him 'supplemental bill and numerous affidavits offered by counsel, which, on receipt, also file, of same date as order appointing receiver. Attached to the order appointing receiver I have appended an order directing the original bill and all the affidavits and exhibits filed to be transferred to the clerk's office at Tampa.'  The Tampa Suburban Railroad Company presented its petition to this court for a writ of certiorari, directed to the circuit court for the Southern district of Florida, to remove the proceedings in question for review, and, on the application to file the petition, a rule to show cause was granted, to which return had been made.  The petition set forth in detail the matters above stated, in brief, with others, and insisted that the orders made by the circuit judge in the state of Ohio were void for want of jurisdiction; that the mortgage of the Consumers' Company was invalid for not having been properly executed, as required by the statutes of Florida; that foreclosure was prematurely sought, because the default in the payment of interest had not been continued for 60 days, contended to be a condition provided in the mortgage; that the original bill and exhibits were not before the circuit judge when the order of August 3d was granted; that the circuit judge improperly considered the amended bill and accompanying affidavits when notice thereof had not been given; that the restraining order was not limited in duration; and that there was no proof of danger of irreparable damage by delay. It was admitted that on the 22d of July, and until and long after the 3d of August, the district judge for the Southern district of Florida and both circuit judges and the circuit justice were absent from the Fifth judicial circuit, and petitioner charged that it had filed in the circuit court for the Southern district of Florida motions to discharge, annul, and set aside the orders of July 22d and August 3d; but that the motions had remained undisposed of up to October 9th, when the petition was verified, because there was no judge of the United States courts within that circuit who had authority to hear and determine the same.

[587]
Noah Brooks Kent Pettingill and Thomas Mitchell Shackleford, for petitioner.  J. H. Joline and H. W. Cahoun, for respondent.  djQ  Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.  By section 716 of the Revised Statutes it is provided that: 'The supreme court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' This undoubtedly authorized the issue of writs of certiorari in all proper cases. American Const. Co.

v.

Jacksonville, T. & K. W. Ry. Co., 148 U.S. 372, 380, 13 Sup. Ct. 758.  In the case of Ex parte Chetwood, 165 U.S. 443, 461, 17 Sup. Ct. 385, we allowed the writ to bring up for review certain final orders of the circuit court which interfered with causes pending in this court; and the question of the issue of the writ by this court in the exercise of its inherent general powers under the constitution did not arise.  By this application the review of two interlocutory orders is sought, the one a preliminary restraining order, and the other appointing a receiver and continuing the injunction in aid of the receivership, on the ground that both these orders were void for want of power in the circuit jud e to grant them outside of his circuit.  That this presents a question of grave importance is obvious, but it is objected that the application cannot be entertained, because the appellate jurisdiction of this court can only be exercised in respect of final judgments or decrees, and also because there is another adequate remedy. We need not consider the first of these objections, as the second is sufficient to dispose of the application.  When sought, as between private persons, the general rule

[588]

is that the writ of certiorari, such as asked here, will be granted or denied, in the sound discretion of the court, on special cause or ground shown, and will be refused where there is a plain and equally adequate remedy by appeal or otherwise.  By the seventh section of the judiciary act of March 3, 1891 (26 Stat. 826, c. 517), as amended by the act of February 18, 1895 (28 Stat. 666, c. 96), it is provided: 'That where, upon a hearing in equity, in a district court or a circuit court, an injunction shall be granted, continued, 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.'  The suit in which the orders complained of were entered is one in which an appeal from a final decree might be taken to the circuit court of appeals, and this even though the question of the jurisdiction of the circuit court was involved. U.S. v. Jahn, 155 U.S. 109, 15 Sup. Ct. 39. An appeal to the circuit court of appeals might, therefore, have been taken from these orders or from an order refusing to set them aside and dissolve the injunction. We are not called on to say that an appeal would lie from an order simply appointing a receiver, but, where the order also grants an injunction, the appeal provided for may be taken, and carries up the entire order, and the case may, indeed, on occasion, be considered and decided on its merits. Smith v. Iron Works, 165 U.S. 518, 17 Sup. Ct. 407.  The application for leave to file this petition must therefore be denied; but we must not be understood as intimating an opinion that a circuit judge has power to grant injunctions, appoint receivers, or enter orders or decrees, in invitum, outside of his circuit.  Leave denied.    Michigan Land & Lumber Co v. Rust  [18SCt208,168US589,42LEd591]  18 S.Ct. 208  168 U.S. 589  42 L.Ed. 591  MICHIGAN LAND & LUMBER CO., Limited, v. RUST.

No. 57.

December 13, 1897.

This was an action of ejectment, commenced in the circuit court of the United States for the Eastern district of Michigan, on February 11, 1888. On November 28, 1892, the case came on for trial before the court and a jury. At the close of the testimony, the jury, under the instructions of the court, returned a verdict for the defendant. On May 7, 1895, this judgment was affirmed by the court of appeals (31 U.S. App. 731, 15 C. C. A. 335, and 68 Fed. 155); and to review such judgment, the case was brought here on writ of error. The land in dispute is situated in Calre county, being the S. E. 1/4 of S. E. 1/4 of section 20, N. W. 1/4 of S. W. 1/4 of section 21, N. W. 1/4 of S. E. 1/4 of S. E. 1/4 of section 22, N. W. 1/4 of N. W. 1/4 of section 28, N. 1/2 of S. W. 1/4 of section 29, N. 1/2 of N. E. 1/4 of section 35, township 18, range 3 W., and E. 1/2 of S. W. 1/4 of section 1, township 18, range 4 W., and amounting to 400 acres, the undivided half of which only was claimed by plaintiff.

The contention of the plaintiff, generally speaking, is that this was swamp land, and granted to the state of Michigan by the act of congress of date September 28, 1850, granting swamp lands to the several states (9 Stat. 519); that it was included in a list of such lands in the Ionia land district, approved by the secretary of the interior, and forwarded to the governor of Michigan on January 13, 1854; that the act of March, 3, 1857 (11 Stat. 251), confirmed the action of the secretary of the interior, and thereby passed the title to the state of Michigan, by which state it was, on October 14, 1887, conveyed to plaintiff's grantor.

The defendant, on the other hand, contends that the original surveys of the public lands in the state of Michigan were erroneous; that, at the instance of the state, congress ordered resurveys, which resurveys were carried on from the years 1842 to 1857; that, while it is true this land was by the original surveys classed as swamp land, and included in the Ionia land district list approved and certified to the state of Michigan, the esurveys showed that it was not land of that description; that a new list for that district, not including this land, was in 1886 made out and certified to the state; that such new list was accepted by the state as correct, and a patent for the lands described theein issued to and received by it; that after all this had taken place, and in 1870, the land in question was sold by the officers of the United States at auction, after public advertisement; and that patents were duly issued upon such sale, under which patents the defendant claims title.

F. E. Robson, A. B. Browne, for plaintiff in error. A. T. Britton, and J. W. Champlin, were on their briefs.

Benton Hanchett and Ashley Pond, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
Uncategorized United States Supreme Court decision