RICKS, District Judge
(after stating the facts as above). These
petitions will be stricken from the files for the reason that they were filed without leave of court, and by persons who are not parties to the cause in this court. The consolidated case was made up of two causes, — one a foreclosure suit, and the other a creditors’ bill. The petitioners were not parties to the foreclosure suit. They were not made parties by the bill of complaint, and they did not attempt to, and were not allowed to, intervene by petition. They were mere general creditors, who had no right to be heard on the issue of foreclosure between the trustee of the mortgage and the defendant railroad company. They had attained no lien on the property, by judgment or otherwise, and were not entitled to resist the prayer of foreclosure. So much for the foreclosure decree. As [174]*174to the decree on the creditors’ bill, they were not parties to the-record! They filed no intervening petition, and all they did was to appear before the master, and file their claims and make objection to other claims. They were but quasi parties, and have no right 'to be heard in this cause, except after leave obtained of the-court.
This would dispose of the petitions, but we prefer also to consider them on their merits. It is unnecessary for us to consider the question whether it is within the power of a circuit judge to direct the entry of a decree of sale in one district of his circuit, when he is sitting in another, without the consent or acquiescence of the' parties. It is clear that, by consent of the parties, a cause in equity may be finally heard and decided by a circuit judge within his circuit, but outside of the district in which the cause is pending. In Doggett v. Emerson, 1 Woodb. & M. 1, 7 Fed. Cas. 819, Mr. Justice Woodbury had occasion to consider the validity of a final hearing-by Mr. Justice Story of a suit in equity pending in the district of Maine, which was heard, by agreement of parties, before the circuit judge, in vacation, at Boston; and it was said in that case that no one of the parties consenting to such hearing could impeach the validity of the hearing and decree on account of the time or the place at which the hearing was had, and the decree directed to be made. Speaking of the opinion rendered upon such a hearing, the court said:
“It shows what is the decree of the court, as much as an opinion, read by one of the judges in the court room, containing the views of the court, shows the opinion of the court. If both are completed and announced to the parties at the time and place agreed by them, they are finished, exceed the mere entry of them on the docket and record. The subsequent steps are rather steps to enforce or carry them into effect, than parts of the decree and opinion themselves.”
Uo such authority was necessary, however, in courts of the United States, to sustain the view that, where parties consent to the final hearing of the cause before a circuit judge whose jurisdiction is throughout the entire circuit, such consent authorizes the entry of the decree in the court where the cause is pending, and upon its records, as if the cause had been heard in open court at that place, lío other construction can be put upon the consent of the parties to have the final hearing at some other place than that fixed by law. It has been the uniform practice in this circuit in equity causes for parties to consent to the final hearing of them outside of the district in which they are pending, at some convenient point in the circuit, before the circuit judge, and after consideration, and upon decision, to enter the decree, by direction of the judge, at the place of holding court in the district, as if the judge had been present at the time of hearing the cause and entering the decree. Such practice has been of the greatest convenience to parties and to the judge.. It, has facilitated the business of the circuit, and made it possible for the circuit judges, whose time has been chiefly taken in appellate work, to assist their brethren, the district judges, in their work in- the various districts, in the disposition of causes which in [175]*175their nature might be as easily.heard at one point as another in the circuit.- Patent suits in equity, and suits tor the foreclosure of railroads, usually involve the attendance of counsel, most of whom do not reside at the place of holding court; and it is as convenient for such counsel, after the record is made up, to attend the judge at one point in the circuit as at another, and not to wait until such time as he may he able to be present in the district where the cause is pending. If it were to he held that decrees entered in accordance with such practice were null and void, and might be impeached by affidavits or other evidence tending to show that the judge whose presence was recited in the record was in some other part of the circuit upon the day on which the decree in the cause was entered, it is not too much to say that Hiere are many decrees, upon which vast interests are deprenden! for title and security, and of many years’ standing, which will still bo subject to impeachment as void. The proof upon this motion shows conclusively, and it is Avithin the personal knowledge of one member of this court, who entered the decrees, that every party to the record was represented at the many hearings AA'hich were held, both interlocutory and final, and at the settlement of the several decrees which were made, and that it Avas clearly understood by all the parties that the final decree was to be entered at Toledo, exactly as if the presiding judge had been present in person at that place. It follows, therefore’ that all the parties to the record are bound by the recital of the record, and are estopqied to deny it.
Put hoAv is the case of the petitioners? They assert that they were parties to the record, and receiAred no notice of the hearings or of the settlement of the decrees at Cincinnati. In the first place, Saw'yer, one of the petitioners, has, as his counsel and solicitor, Mr. J. D. Springer, Avho was present in the court room and in the judge’s chambers at Cincinnati on every occasion when any hearing was had, when any order was made, when any decree was settled. In the second place, both Sawyer and Thornton were, out of abundant caution, brought in by citation to the appellate proceedings, and Avere given an opportunity to join in the appeal. They were thus advised of the decrees AA'hich had been entered, and had full opportunity lo appeal therefrom, and to be heard upon such appeal; and one person, similarly situated Avith them, Charles Miller, who Avas only a general creditor, ha\dng filed his claim before the master, Avas allowed to appeal from the decrees theretofore entered. Notwithstanding this, the petitioners made no objection in the court of appeals ihat the decrees entered had not been regularly entered according to law. As these petitioners were given an opportunity to join in that appeal, and declined to do so, the order and mandate of the appellate court is as binding upon them as it is upon any of the persons Avho were regularly parties to the record. Moreover, this court has no power to modify or supersede, in the slightest degree, the decrees which bear the imprimatur of the court of appeals. In re Potts, 166 U. S. 263, 17 Sup. Ct. 520, 41 L. Ed. 994; In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414. It is the duty of this court simply to execute the mandate of that [176]
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RICKS, District Judge
(after stating the facts as above). These
petitions will be stricken from the files for the reason that they were filed without leave of court, and by persons who are not parties to the cause in this court. The consolidated case was made up of two causes, — one a foreclosure suit, and the other a creditors’ bill. The petitioners were not parties to the foreclosure suit. They were not made parties by the bill of complaint, and they did not attempt to, and were not allowed to, intervene by petition. They were mere general creditors, who had no right to be heard on the issue of foreclosure between the trustee of the mortgage and the defendant railroad company. They had attained no lien on the property, by judgment or otherwise, and were not entitled to resist the prayer of foreclosure. So much for the foreclosure decree. As [174]*174to the decree on the creditors’ bill, they were not parties to the-record! They filed no intervening petition, and all they did was to appear before the master, and file their claims and make objection to other claims. They were but quasi parties, and have no right 'to be heard in this cause, except after leave obtained of the-court.
This would dispose of the petitions, but we prefer also to consider them on their merits. It is unnecessary for us to consider the question whether it is within the power of a circuit judge to direct the entry of a decree of sale in one district of his circuit, when he is sitting in another, without the consent or acquiescence of the' parties. It is clear that, by consent of the parties, a cause in equity may be finally heard and decided by a circuit judge within his circuit, but outside of the district in which the cause is pending. In Doggett v. Emerson, 1 Woodb. & M. 1, 7 Fed. Cas. 819, Mr. Justice Woodbury had occasion to consider the validity of a final hearing-by Mr. Justice Story of a suit in equity pending in the district of Maine, which was heard, by agreement of parties, before the circuit judge, in vacation, at Boston; and it was said in that case that no one of the parties consenting to such hearing could impeach the validity of the hearing and decree on account of the time or the place at which the hearing was had, and the decree directed to be made. Speaking of the opinion rendered upon such a hearing, the court said:
“It shows what is the decree of the court, as much as an opinion, read by one of the judges in the court room, containing the views of the court, shows the opinion of the court. If both are completed and announced to the parties at the time and place agreed by them, they are finished, exceed the mere entry of them on the docket and record. The subsequent steps are rather steps to enforce or carry them into effect, than parts of the decree and opinion themselves.”
Uo such authority was necessary, however, in courts of the United States, to sustain the view that, where parties consent to the final hearing of the cause before a circuit judge whose jurisdiction is throughout the entire circuit, such consent authorizes the entry of the decree in the court where the cause is pending, and upon its records, as if the cause had been heard in open court at that place, lío other construction can be put upon the consent of the parties to have the final hearing at some other place than that fixed by law. It has been the uniform practice in this circuit in equity causes for parties to consent to the final hearing of them outside of the district in which they are pending, at some convenient point in the circuit, before the circuit judge, and after consideration, and upon decision, to enter the decree, by direction of the judge, at the place of holding court in the district, as if the judge had been present at the time of hearing the cause and entering the decree. Such practice has been of the greatest convenience to parties and to the judge.. It, has facilitated the business of the circuit, and made it possible for the circuit judges, whose time has been chiefly taken in appellate work, to assist their brethren, the district judges, in their work in- the various districts, in the disposition of causes which in [175]*175their nature might be as easily.heard at one point as another in the circuit.- Patent suits in equity, and suits tor the foreclosure of railroads, usually involve the attendance of counsel, most of whom do not reside at the place of holding court; and it is as convenient for such counsel, after the record is made up, to attend the judge at one point in the circuit as at another, and not to wait until such time as he may he able to be present in the district where the cause is pending. If it were to he held that decrees entered in accordance with such practice were null and void, and might be impeached by affidavits or other evidence tending to show that the judge whose presence was recited in the record was in some other part of the circuit upon the day on which the decree in the cause was entered, it is not too much to say that Hiere are many decrees, upon which vast interests are deprenden! for title and security, and of many years’ standing, which will still bo subject to impeachment as void. The proof upon this motion shows conclusively, and it is Avithin the personal knowledge of one member of this court, who entered the decrees, that every party to the record was represented at the many hearings AA'hich were held, both interlocutory and final, and at the settlement of the several decrees which were made, and that it Avas clearly understood by all the parties that the final decree was to be entered at Toledo, exactly as if the presiding judge had been present in person at that place. It follows, therefore’ that all the parties to the record are bound by the recital of the record, and are estopqied to deny it.
Put hoAv is the case of the petitioners? They assert that they were parties to the record, and receiAred no notice of the hearings or of the settlement of the decrees at Cincinnati. In the first place, Saw'yer, one of the petitioners, has, as his counsel and solicitor, Mr. J. D. Springer, Avho was present in the court room and in the judge’s chambers at Cincinnati on every occasion when any hearing was had, when any order was made, when any decree was settled. In the second place, both Sawyer and Thornton were, out of abundant caution, brought in by citation to the appellate proceedings, and Avere given an opportunity to join in the appeal. They were thus advised of the decrees AA'hich had been entered, and had full opportunity lo appeal therefrom, and to be heard upon such appeal; and one person, similarly situated Avith them, Charles Miller, who Avas only a general creditor, ha\dng filed his claim before the master, Avas allowed to appeal from the decrees theretofore entered. Notwithstanding this, the petitioners made no objection in the court of appeals ihat the decrees entered had not been regularly entered according to law. As these petitioners were given an opportunity to join in that appeal, and declined to do so, the order and mandate of the appellate court is as binding upon them as it is upon any of the persons Avho were regularly parties to the record. Moreover, this court has no power to modify or supersede, in the slightest degree, the decrees which bear the imprimatur of the court of appeals. In re Potts, 166 U. S. 263, 17 Sup. Ct. 520, 41 L. Ed. 994; In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414. It is the duty of this court simply to execute the mandate of that [176]*176court. It cannot annul its decree after the expiration of the term at which it was entered. Sibbald v. U. S., 12 Pet. 488, 9 L. Ed. 1167.
The supreme court of the United States has said that:
“On a mandate from this court affirming a decree, the circuit court can only-record our order, and proceed with the execution of its own decree as affirmed. It has no power to rescind or modify what we have established. * * * After the appeal had been taken, the power of the court below under its own decree was gone. All it could do after that was to obey our mandate when j.t was sent down. We affirmed its decree and ordered its execution.”
In accordance with that duty the decree of November 13, 1899,. was entered. It was settled at Cincinnati after due notice to all the parties to the record, and without objection by any of them, in accordance with the course which had been taken with respect to every hearing in the case after the cause had first been submitted to Judge Taft. So far as the foreclosure decree is concerned, the petitioners are not parties to it in any way, and they have no standing to impeach it for any reason. So far as the creditors’ bill is concerned, and the decree of the court executing the mandate of the court of appeals upon that, their position is no better. They were not parties to the record, and, so far as the regularity of the. decree is concerned, they are bound by the consent of the complainant in the creditors’ bill, and the other parties thereto, who for such purpose are representative of the whole class of creditors. It would be the grossest injustice to the parties to this cause, in whose favor those decrees have been pronounced, and who have, in the well-founded belief induced thereto by the consent and conduct of +heir real opponents, that hearings had and decrees settled at Oinci _iati were to be recorded at Toledo as if held or passed at the latter place, expended much time, money, and labor to bring this protracted and burdensome litigation to an end, now to hold that the decrees are as waste paper. For the reasons given, the petitions, are held to have no merit in them, and, having been filed without leave, they are stricken from the files.
This action of the court meets the present emergency, and we should be content to leave the matter as it is, were it not that these petitions, considered in the light of all the circumstances, justify the- suspicion that some of the defeated litigants in this cause are willing to evade the estoppel against obstructive proceedings which considerations of propriety and good faith to their adversaries and the court would necessarily create, by the instigation of others,, with comparatively little interest in the litigation, to a course of obstruction in which it is hoped they may not be met by the estoppel, and which, if successful, will inure to the benefit of all the defeated litigants. Counsel may be easily changed, and new counsel employed, who can deny any consent to proceedings of the court which were induced by the consent and acquiescence of the retiring counsel. We propose, therefore, to remove every shadow of a ground, however slight and unfounded, which the desperation of defeated litigants may seize upon, or the astuteness of compliant counsel may suggest, for future attack upon the regularity of these decrees. Therefore, out of abundant caution, we shall re-enter and confirm [177]*177the decrees of November 13, 1899, as of this day. Under that decree the advertisement for the sale has begun, and the date fixed as of the 14th day of February next. Some expense has been incurred thereby. Nevertheless an order will be entered directing the masters to cease the advertisement begun. The decree of November 13, 1899, will be modified so as to extend the time within which the sale may take place to the 2d of April next, and the special masters are authorized and directed to fix a day for the sale, within the time limited, so that due advertisement under the decree may be had before the sale, and to begin a new advertisemént accordingly. Proper entries have been prepared by the court, and will be entered by the clerk forthwith.
The full brief of counsel for the petitioners, and all the evidence offered in support of their motions, have been submitted to Judge TAFT, and he joins me in this opinion, and fully concurs therein, and also with the orders and decrees this day entered.