Pollitz v. Farmers' Loan & Trust Co.

39 F. 707, 1889 U.S. App. LEXIS 2843

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: February 18, 1889
• Status: Published

Opinion

Lacombe, J.

The authorities cited by the complainant sustain bis contention that, at least as to so much of the bill as seeks to prevent the defendants from putting out of the jurisdiction of the court the fund and property now within it, the suit is within the saving clause of section 5 of the act of 1887. Upon the argument the statement was made that service of process was made in this district upon the vice-president of the Oregon & California Railroad Company. The moving papers, however, contain no such statement, and set forth no facts tending to show that the railroad corporation was not in fact “found” within the district. The motion is therefore denied, with leave to renew.

(June 12, 1889.)

Two applications in this suit are now pending,—one to settle the terms of an injunction order restraining the Farmers’ Loan & Trust Company from paying over certain moneys; and the other to set aside an order for a substituted service of the process upon' the defendant the Oregon & California Railroad Company. As to the latter motion, it was decided in the memorandum of opinion filed February 18, 1889, that, “as to so much of the bill as seeks to prevent the defendants from putting out of the jurisdiction of the court funds and property now within it, the suit is within the saving clause of section 5 of the act of 1887.” Further examination of the authorities leads me to adhere to the opinion then expressed. The authorities cited by the complainant in the argument on the present motion abundantly sustain the proposition that, although the language used in the section cited is permissive in form, it is in fact peremptory. The elaborate argument, therefore, which has been presented on behalf of the defendant as an appeal to the discretion of the court, cannot properly be considered on this motion, which must be denied. The application for a preliminary injunction having been made before the real party defendant in interest was brought into the case, and no one having been heard upon such application except the complainant and the Farmers’ Loan & Trust Company, which latter corporation appeared as a mere stakeholder, the terms of such order will not be settled, nor the order handed down, until the defendant the Oregon & California Railroad shall have had a reasonable opportunity to be heard in opposition.