Hinckley v. Gilman Clinton and Springfield Railroad Company

MOTION to dismiss an appeal from the Circuit Court of the United States for the Southern District of Illinois.

In the progress of a suit for the foreclosure of a mortgage executed by the Gilman, Clinton, and Springfield Railroad Company, Francis E. Hinckley was appointed receiver. On the 8th of April, 1876, a final decree was rendered, under which, on the 10th of June, the mortgaged property was sold, and subsequently conveyed to the purchasers. Upon a settlement of the accounts of the receiver, a balance was found due from him of $18,776.25, for which a decree was entered Sept. 27, directing its payment into court on or before Oct. 10. On the 9th of October he prayed this appeal 'from the decree against him,' which was granted. The complainants now move to dismiss, for the reason that he was not a party to the suit.

Mr. R. Biddle Roberts in support of the motion.

The appellant is not a party to the suit, and cannot be. Being merely the officer or representative of the court, without any personal interest whatever in the litigation, the right to discharge him rests with the court, at any stage of the controversy; and from the exercise of this right he cannot appeal. High on Receivers, 536; In re Colvin, 3 Md. Ch. 300; Ellicott v. Warford, 4 Md. 80. Only those who are parties to the record can sue out a writ of error. Phillips's Practice, p. 64, and cases there cited. The same rule applies to appeals. Id. p. 65. On the eighth day of April, the final decree was entered, from which an appeal was not prayed, nor could it, in the ollowing October, be taken, much more than sixty days having then elapsed. Kitchen v. Randolph, 93 U.S. 86. The decree of Sept. 27, requiring the payment of money into court, was merely interlocutory, transferring the possession of property in litigation. The rule of finality cannot apply to it. Forgay v. Conrad, 6 How. 201. This doctrine is sustained by Thomson v. Dean, 7 Wall. 342; Railroad Company v. Bradley, 7 id. 577; Stowall v. Banks, 10 id. 583; and it would seem to be the settled law in this court.

Mr. H. Crawford and Mr. S. P. McConnell, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.