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Opinion of the Court.

appeal; and whatever action he may attempt in that regard. is fruitless against any bondholder who does not consent.

We wish before concluding to make this further suggestion. Elwell's release closes with the statement: "Without intending, however, to prejudice the right of the holders of any of said convertible mortgage bonds to enforce the payment of their said bonds or any part thereof." It is evident, therefore, that the release itself, even if within his power to execute, is wholly nugatory so far as having any effect upon this appeal is concerned. The appellant here is holder of certain of these bonds who has been given leave by the court to prosecute this appeal and use Elwell's name for that purpose, and the release cannot be considered as including this case.

MR. JUSTICE BLATCHFORD, after stating the case as above, delivered the opinion of the court.

It is contended for the bank that Elwell had no authority, as trustee in the second mortgage, to release errors in the foreclosure proceedings or in the decree and to waive the right to appeal from the decree; that his attempt to do so was a breach of trust, and outside of the powers and duties conferred upon him by the trust deed; and that the release does not bar the right of the bank, as the holder of bonds secured by the trust deed to Elwell and Fish, to prosecute this appeal by the leave of the court, in the name of Elwell, nor furnish any reason for dismissing it. In the petition of intervention filed by the bank on the 24th of June, 1884, six days before the final decree was entered, it was alleged "that, neither before the rendition of the final decree in this cause in this court, nor after its reversal by the supreme court, has the said Elwell shown any diligence or attempted to make any arrangement to prevent a sacrifice of the interests of your petitioner and others similarly situated;" and "that, unless it shall be permitted to become a party to this suit and file its answer therein, it will lose its rights in the premises under some collusive compromise or colorable sale, or through the indifference or neglect of the said Elwell." The court denied the prayer of the

Opinion of the Court.

intervening petition of the bank, stating "that the trustees under said second mortgage are parties to this suit and have appeared and answered herein, and that there is no proof showing that said trustees are not acting in good faith."

It thus appears that the court passed upon the question of collusion on the part of Elwell, and held that the bank was bound by the acts of Elwell representing it as trustee. No action was taken by the bank to appeal for more than three months. By an order made August 3, 1885, it was allowed to appeal in the name of Elwell, trustee, but it failed to perfect any appeal under such allowance. Such appeal was re-allowed on the 28th of June, 1886, and was perfected on the 30th of June, 1886, being exactly two years after the entry of the final decree and the last day on which the appeal could be taken. Meantime, by an instrument executed in October, 1884, and filed in the Circuit Court in November, 1884, at a time when no appeal was pending from the decree, the release of errors was executed by Elwell, trustee.

We are of opinion that this release bound all the bondholders represented by Elwell. It appears by the release that only 955 of the convertible bonds were issued; that 58 were issued in exchange for coupons, all of which coupons had been paid out of the proceeds of the sale of the property; that, of the remaining 897, the holders of 617 did not desire further litigation; and that the holders of the remaining 280 had hitherto declined to contribute to the cost of the litigation or to protect the trustee against loss or the payment of costs or counsel fees. No substantial reasons appear for permitting the bank, as the holder of only $14,000 of the bonds, to defeat the plainly expressed will of the holders of the remainder. Sage v. Central Railroad Co., 99 U. S. 334.

The allegation of neglect or collusion on the part of Elwell, as trustee, was found by the Circuit Court to be untrue. The trustee represented the bondholders not only in the proceedings which resulted in the entry of the decree, so that the bondholders were not necessary parties, but he also bound them by his release of errors. His relations to them had not changed between the time of the entry of the decree

Opinion of the Court.

and the time of the execution of the release. Shaw v. Railroad Co., 100 U. S. 605, 611, 612; Bank v. Shedd, 121 U. S. 74, 86; Barnes v. Chicago, Milwaukee &c. Railway, 122 U. S. 1.

The release of errors, although not found in the transcript of the record, is properly brought before this court, for the purpose for which it is presented. In Dakota County v. Glidden, 113 U. S. 222, 225, this court, speaking by Mr. Justice Miller, said: "But this court is compelled, as all courts are, to receive evidence dehors the record affecting their proceedings in a case before them on error or appeal. The death of one of the parties after a writ of error or appeal requires a new proceeding to supply its place. The transfer of the interest of one of the parties by assignment or by a judicial proceeding in another court, as in bankruptcy or otherwise, is brought to the attention of the court by evidence outside of the original record, and acted on. A release of errors may be filed as a bar to the writ. A settlement of the controversy, with an agreement to dismiss the appeal or writ of error, or any stipulation as to proceedings in this court, signed by the parties, will be enforced."

By the provisions of the mortgage to Elwell, he, as trustee, could proceed to collect the mortgage debt, by litigation or otherwise, only at the request of the holders of a majority of the bonds. As appears from the terms of the release, and is not controverted, the majority of such holders desired the litigation to cease. The trustee was authorized to put an end to it, and his waiver of an appeal binds all who act in his name as trustee. The bank was not a party to the suit, and its right to appeal depended entirely upon the action of the trustee. Ex parte Cutting, 94 U. S. 14, 21; Ex parte Cockcroft, 104 U. S: 578. All that the Circuit Court did was to allow the bank to appeal in the name of the trustee. The bank is bound by all the preceding acts of the trustee, done in good faith. On the facts of the case, the appeal must be considered as the appeal of the trustee, and as barred by his release executed long before the appeal was granted.


Opinion of the Court.

The result is that the appeal must be dismissed, and it is so ordered.

MR. CHIEF JUSTICE FULLER, having been of counsel in this case, did not sit in it or take any part in its decision.






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When the record is not filed in this court at the term succeeding the allowance of an appeal, the appeal ceases to have any operation or effect, and the case stands as if it had never been allowed.

THE case is stated in the opinion.

Mr. John G. Woolley for appellant.

Mr. W. P. Clough, Mr. A. H. Garland and Mr. H. J. May for appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the


This appeal must be dismissed for want of jurisdiction. Small filed his bill in the District Court of the Fourth Judicial District of the State of Minnesota, whence the cause was subsequently removed into the Circuit Court of the United States for the District of Minnesota, and, upon hearing, resulted on the 24th day of June, 1884, in a decree dismissing the complainant's bill, and rendering judgment in favor of the defendant for its costs to be taxed. On the 25th day of June, 1884, the complainant prayed an appeal to this court, which was granted. On the 21st day of May, 1886, complainant filed an


appeal bond and a citation was issued, returnable at the October term, 1886, dated April 30, 1886. The record herein was filed October 19, 1886. The only appeal which from the record before us appears to have been prayed and allowed was that of the 25th day of June, 1884.

But, as we have said many times before, inasmuch as the record was not filed at the term succeeding the allowance of the appeal, that appeal ceased to have any operation or effect, and the case stood as if it had never been allowed. There was no allowance of an appeal after that, and when the record was filed on the 19th day of October, 1886, this was not done in pursuance of an appeal still in force, nor could an appeal hen have been allowed, as two years had expired from the ate of the final decree. This appeal was not "taken" as 'ovided, and we are, therefore, compelled to dismiss it. edit Company v. Arkansas Central Railway, 128 U. S. 258; chardson v. Green, 130 U. S. 104; Evans v. State National nk, ante, 330.

Appeal dismissed for want of jurisdiction.




No. 215. Submitted March 19, 1890.- Decided March 31, 1890..

A state statute which confers upon a judgment creditor of a corporation, when execution on a judgment against the corporation is returned unsatisfied, the power to summon in a stockholder who has not fully paid the subscription to his stock, and obtain judgment and execution against him for the amount so unpaid, in no way increases the liability of the stockholder to pay that amount; and, inasmuch as he was before then liable to an action at law by the corporation to recover from him such unpaid amount at law, as well as to a suit in equity, in common with other similar stockholders, to compel contribution for the benefit of creditors, no substantial right of the stockholder is violated.

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