# North Carolina Railroad Company v. Swasey

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United States Supreme Court
90 U.S. 405
North Carolina Railroad Company v. Swasey
On motion to dismiss, for want of jurisdiction, as not 'final,' an appeal from the Circuit Court for the Eastern District of North Carolina.
The case was thus:
The State of North Carolina by acts of her legislature passed in January, 1849, and 1855, subscribed for stock in the North Carolina Railroad Company, of the par value of $3,000,000. To pay for this st ck she borrowed money and issued her bonds and certificates of debt with coupons for interest, redeemable in thirty years, with interest, payable semi-annually. In the laws authorizing these subscriptions and loans, she pledged and appropriated for the payment of the bonds or certificates the faith of the State, the stock and all dividends which might be declared thereon.
Of a large amount of these bonds one Swasey became the holder.
From the year 1869, the State received the dividends upon the stock, and appropriated the money to purposes other than the payment of the interest. A large amount of interest coupons being unpaid, a bill in equity was now filed by Swasey for himself and on behalf of several other bond-holders, praying the Circuit Court of the United States for the Fourth District,
1st. To restrain the treasurer of the railroad company from paying any future dividends to the State treasurer.
2d. To restrain the State treasurer from receiving any future dividends.
3d. For the appointment of a receiver, &c.
After argument before the circuit judge, June 19th, 1871, he awarded the injunction, and appointed Mr. J. B. Batcheler a receiver.
Several dividends were accordingly paid to the receiver, and by him distributed, under various orders of the court.
It becoming evident that the arrears of interest could not be paid without a sale of the stock, a motion for a sale was made by the plaintiffs, and on that motion the court entered a decree as follows:
'This cause coming on for further order, the court doth declare:
'1st. That by the terms of the charter of the North Carolina Railroad Company, and the amendments thereto, the shares of the stock in said company, belonging to the State of North Carolina, meaning thereby the shares and all dividends thereon, are pledged as security for the payment of the certificates of debt in such charter and amendments provided for, and for every part of such certificates, meaning thereby the interest accruing upon the principal thereof, as well as the principal.
'2d. That the plaintiff, and those he represents, as owners of such certificates of debt or bonds, or of coupons detached therefrom, now hold large amounts of the past due coupons of said certificates of debt or bonds, and that they are entitled to have their respective proportions of the stock, or so much thereof as may be necessary, sold, in order to pay such past due interest.
'Upon motion of counsel for the plaintiffs, it is therefore ORDERED and DECREED, that J. B. Batcheler, the commissioner heretofore appointed in this suit, take an account of such unpaid interest, and of such further interest as will be due on or before the 1st day of April, 1875, and also of such proportion of the said stock of the State of North Carolina, in said North Carolina Railroad Company, as may be equitably applicable to the payment of said interest found due to each of the said plaintiffs respectively, and that he make report to the next term of this court.
'It is further ordered and decreed, that unless on or before the 1st day of April, 1875, it shall be made to appear to this court that the said State of North Carolina has levied a tax sufficient to pay the said arrears of interest, and has provided for its collection, or shall otherwise have paid or secured the payment of the said past due interest, then so much of the said stock of the State in the said North Carolina Railroad Company, apportioned to the plaintiff, and those he represents, as may be necessary to pay off and discharge said arrears of interest, shall be sold to the highest bidder for cash.'Directions are then given as to the manner in which the sale is to be made, and at the end of all are these words:
'And this cause is held for further directions.'
From this decree the North Carolina Railroad Company took an appeal, and this appeal it was which it was now moved to dismiss as not being 'final,' and therefore not within the expressions of the act of March 2d, 1803, which gives an a peal to this court only from 'final judgments or decrees.'
Messrs. W. J. Budd and F. C. Brewster, in support of the motion to dismiss:
A final decree in equity is defined by a very good text-writer, Mr. Daniells, to whose numerous authorities we refer without citing them, to be one which definitively adjudges the whole subject-matter; an interlocutory decree, one which disposes of some parts and reserves others for future decision.
The present decree is not final, when tested by these principles laid down by Daniells.
Messrs. W. H. Battle and W. N. H. Smith, contra:
The decree is final and an appeal lies to this court.
It is a decree of foreclosure and sale, and disposes fully of the moneys arising upon a sale, leaving only to be performed, under the reference, such ministerial duties, in furtherance of the decree, as would secure the full benefits of its complete execution to the plaintiffs. Nor is it affected by the provision which suspends action under the decree, if 'on or before the 1st day of April following the State of North Carolina shall levy a a tax sufficient to pay' the interest, or shall otherwise pay or secure the same, since in all decrees of foreclosure of mortgages a day of payment is given, and if payment is made the sale is arrested, because in either case the same object is obtained, the satisfaction of the debt.
We may admit that the decree is not 'final' ad unguem; positively, completely, and perfectly final in all details. But it is not necessary to give an appeal that it should be so. In Bronson v. Railroad Company, a motion was made to dismiss an appeal from a decree of foreclosure in a mortgage; the ground of the motion being there as here, that such a decree was not final. But this court say:
'This decree is not final in the strict technical sense of the word, for something yet remains for the court below to do. But, as was said by Chief Justice Taney in Forgay v. Conrad, this court has not therefore understood the words, final decree, in this strict and technical sense, but has given them a more liberal, and, as we think, a more reasonable construction, and one more consonant to the intention of the legislature.
'In the case of Ray v. Law and Whiting v. The bank of the United States, § this court has decided that a decree for the sale of mortgaged premises is a final decree from which an appeal lies. The court rested their decision on the ground that when the mortgage was foreclosed and a sale ordered, the merits of the controversy were finally settled and the subsequent proceedings were simply a means of executing the decree.'
The CHIEF JUSTICE delivered the opinion of the court.

## Notes

* ↑ Daniells's Chancery Practice, American edition of 1846, vol. ii, p. 1199 and notes.
* ↑ 2 Black, 531.
* ↑ 6 Howard, 203; and see, to the same effect, Ray v. Law, 3 Cranch, 179; Whiting v. Bank of United States, 13 Peters, 11; The Palmyra, 10 Wheaton, 503; Wabash and Erie Canal v. Beers, 1 Black, 54.
* ↑ 3 Cranch, 179.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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