Central Trust Co. of New York v. United States Flour Milling Co.

113 F. 587, 1901 U.S. App. LEXIS 4739

Opinion

LACOMBE, Circuit Judge.

While the decree for foreclosure and sale signed by Judge THOMAS remains on the record, it should be accepted by this court as a decision upon the merits, to which future action should be conformed. If, as is asserted, that decree was made without notice to any of the parties, or was contrary to a prior adjudication, or was improvident, it may be corrected by application to modify or by appeal. Until this is done, however, it must be assumed that such decree has secured some benefit to nonassenting bondholders, which they would not otherwise have obtained. Therefore it would be an abuse of discretion for another judge of the same court to nullify the advantages thus secured to third parties, even though not parties strictly of record, by ordering a discontinuance against their objection.

Motion denied. The order denying the motion may also contain a clause forbidding the receivers or any of the parties from removing out of the jurisdiction of this court any property affected by the decree, and now within such jurisdiction.