The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-15

ceiver was pressed ON the I'D were themselves, on
the nth, applying IN this court e1 pdre, In case
OF Mcintosh they obtained 81 Order pn,te them
selves, appointing Jas Gould az receiver OF this COM
pany' ana .nat by an order Is sweeping ana liar ,ar
complained here; and that was followed by another
order made on the 18TH. ex pdre, Allowing TINS re-
cever to buy In $40 600 OF the stock OF this conf
pany spurious invalid 1t any price not exceeding
par That was power ~ extraordinary as any that
had ever been exercised by any court
ON the 3d. after q contest, Judge Sutherland
made an order. on the 10th OF November the other
side obtained an order to show cause from MS
Honor why there should not be rehearng Of the
motion on which Judge Sutherland had already
passed. IL was part OF the history OF the that
the S s
reargument heard before the Judge who had heard
the first argument They had done this with no dis
trust OF the Judge who was now caring the case
that he would not give them fair and patient hear
ing and decide according 10 his honest conviction
what WAS ns gns nds and ne 0er sce MAO
have II deferred until II would come up before
another Judge. They had made this effort because
they believed IL to be the courteous proper and legal
course to have the motion, II It could be heard at
all, heard before the same Judge. None OF them
doubted that sns present Judge woad hear II
tured to intimate, was done by the other side Of
another Judge, that judge OF this court was too
much under the Dominion OF passion or prejudice to
give fair rehearing.
In any case where o rehearing was proper and
was allowed It was for the court TO say whether on
the rehear1nR, 1t would permit additional afidavts
to be used. But this was not new motion to remove
the receiver appointed. II was simply motion to
review before one Judge decision made by another.
In arguing this motion II had been sa that no limit
OF time was placed on the receivership. and that If
Mr.. Dawes were immortal the railroad would be con-
Quoted by MN forever but there was no ground for
such an argument The receivershlp was, OF course,
merely auxiliary to the suit. II the piaintin obtained
his relief that would end the receivership. II his
suit failed, that would end it. Now II this were a
motion TO vacate this receivership on the answers
and new ahldavits which were not before Judge
Dpf lanfnr fhnu
could move in that motion the other side would have
10 admit several things which now they deny. They
would have to admit the jurisdiction OF Judge Suth-
erland TO make the order and that the order was
properly made on the facts then appearing.
Their motion had been made not eE pdrte, but on
notice, and with all the time to introduce testimony
which the Court in Its Judgment had thought them
TO be entitled to. They had followed the regular
order for obtaining receiver after solemn argument
on due notice to the parties interested Had the
order been made eL pdrte there might have been
reason Tor this motion, but since they had had
vacate an order made after such notice. because
they had employed their time In getting up coliusyt
suits in outside matters and had neglected to produce
testimony within their power
He understood that the other side charged as one
reason Tor this motion that on the previous argument
the Judge acted hastily and incOnsiderately and
under the pressure OF great prejudice and passion
Judge CardozO interrupted the speaker to say that
he did not understand that the defendants had made
either in their papers or argument any such charge
His understanding Of the papers had been that they
merely set out that, as often happens In the neces
rights Of some parties had been overlooked. and
that, therefore, rehearing should be had Sucn q
course was frequently taken on this very ground
and indeed, Judge Sutherland had acted this
ground at least ffty times In the last two months
or course he did not intend to interfere with counsel
In the management OF their arguments.
Judge Emott said he had certainly understood
that such charge was made. He knew counsel had
disclaimed any imputation on Judge Sutherland
and had expressed the highest respect for him. but
to charge prejudice and passion seemed to him to
charge matters very derogatory to Judge.
motion was before him He had understood tina
all the motions were TO come before him ut once
and he found Ave on bis calendar None Of the
counsel seemed very certain what the five motions
were and 1t was finally conceded that the motion
now on was the argument for a rehearing Of the
motion and reversal Of Judge Sutherlands orders In
the Belmont suit
Judge Emott rcsumed-He had read the minutes
OF the argument before Mr.. Justice Sutherland and
had derived some instruction and some amusement
from them. They had not introduced them here, as
they would have entaied q very large ex-
pense in case they appealed. Mr. Stoughton
had expressed wish IN ms argument that some
land from laying his hand on Erie. Well,
revertng to the original meaning OF angel messen-
when, after persistent Eight throughout the day
late in the afternoon Judge Sutherland expressed
delays, an angel appeared to help them: them at .
little later hour second angel brought them some
sixteen affidavits TO consume time and lastly
third, no doubt with information OF their success
in appointing = receiver IN another proceeding,
which enabled them to draw OF. Then, on the 10Th,
this order To show cause obtained. IL was a
new practice to attack In this manner an order
granted after such fun and careful argument Han
order might be thus attacked why could not judy
entsY An order once entered could only be reviewed
within specified time and Ia a specified manner,
by appeal but orders were to be reviewed In this
Apparently they were be left 70 the mere discre-
ton OF the judge. reargnment might 1t Is true,
be granted IN certain cases, but It could not be
granted where the order had already been executed
In whole or in part. In this the receiver had
died his bond, he had incurred expenses, he had
been made party TO suits so far the defendants
and hostile orders OF the court would permit him he
had entered on the discharge OF his duties A
hearing could not be had, except before the same
Judge, unless where the same Judge could not be
reached.
Mr.. Porter asked II he had any authority for his
last proposition.
Judge Emott said no. for that but for this one. II
had been argued that all judges Of this court were
but one Judge. such a fiction was never heard of
when all the judges were much more one IN fact
than they Low were IL came with n peculiar force
rom those who had striven so persstently TO make
distinction between judges that their efforts TO
prevent a rehearing OF this before Judge Suther
land had called forth remarks IN court from that
Judge. This rule would be found laid down In the
old chancery books and II had been incorporated In
the statute law ~ England. rehearing was not
allowed correct an error VI law In decision OF the
court i'm which ~ supposed TO have been made
hut TO cali the attention OF the Court TO some fact
which IL was believed TO have overlooked For that
reason me rehcaring must be by the same
Judge. Another Judge cannot say, in the
overlooked an important fact. lie cannot enter into
his mind. the Court here must IN this case, N he
hear IL at all. Fit "a Court OF Appeals TO review
Judge Sutherlands decision. lie would recall to his
opponents-one OF whom had been 80 frequently
before the Court OF Appeals and another had but
lately left its benchthat they were required to show
to obtain rehearing from the opinion OF the Court
that some important fact had been omitted In the
consideration OF the case aud on the rebearing to
confne their argument 10 the bearings Of that fact
(Judge Emott here cited several authorities on this
point and referred to tho English law regulating the
practice In Chancery.l II was argued by the other
Side that there should be reheariDg because the
order was made without jurisdiction. II " were
made without jurisdiction, then the counsel was
right in saying that the company should disregard
the order; but there was wide difference
between want OF Jurisdiction and erroneous
decision on the law. Jurisdiction vas given by the
parties and the subject OF the action. The Court I'M
questlonably had Jurisdiction OF the parties. IL had
Jurisdiction OF the subject OF the action The subject
matter was the misconduct OF trustees, and OF this
the Court Ind Jurisdiction. This jurisdiction did not
arise from the statute quoted by the other side but
was anterior IL and rested on their general equity
Jurisdiction. Every stakeholder had the right TO
claim the protection OF the Court against the mlscon
dnct NJ hia trugfees when DESTROYING property,