Cottonwood report. [volume] (Cottonwood, Idaho) 1893-1901, 1895-09-13

opinion OF Judge HanforuFas hieo
late in the afternoon. The receivers
are each ordered to file with this court
bond for $40, 900, and also report
of their actions from the time OF the
last report confirmed by Judge Jenkins
ND to the present. 1t is held that the
acts of the receivers are not invalid,
and that the $4,000, 900 receivers GER
tificates are valid liens as soon as con-
tirmed by the respective courts
By the decision the question OF Jur-
isdiction is settled, and the court here
becomes the court of primary jurisdic-
ton, settling the question of collateral
attack.
The second part of the Ives applica-
ton will come up at the hearing OF the
order to show cause, and the question
of fact as to whether the receivers have
been lax in their administration of the
trust estate will then be opened. Judge
Gilbert says:
"The actual possession of the prop
erty of tho insolvent corporation by the
first court, through its receivers, could
extend no farther than the territorial
limits of that courts jurisdiction. The
rights receivers are accorded in courts.
whose jurisdiction is superior to that
of initial proceeding, have their basis
in comfy. Such comfy rests upon the
fact that another court is in the acutal
possession of portion of the property,
which cannot we'll be segregated, and
which the best interests of all con-
cerned required to be managed by a
single system. Here, however, it is
shown that at the time of filing this
application to remove the receivers there
is no part of the railroad line of the
Northern Pacific Railroad Company
within the jurisdiction of the court
that first appointed them, and that
there is in that district no personal
property held in receivership. All the
property that remains to be disposed of
is in other jurisdictions. 1t follows
from this state of facts that the court
is utterly powerless to make an order
which affects in any way the manage
ment or possession of any property OF
the corporation. No foreclosure sale
of said mortgages can be had, no pos
session to a purchaser can be given,
until the courts which have the actual
possession of said railroad shall consent
!; thereto.
SIN our Judgment the rule of comfy,
} which has been invoked in opposition
to the motion, does not apply to such a
, case as this. The foundation of the
rule is the recognition of the right that
exists in another jurisdiction. 1t is
, predicated upon the fact that another
, court has first taken and retained the
possession of property. Its reason con-
sists in the fact that the court of init.
: atory proceedings has in its possession
and must necessarily administer a por.
ton of property which a wise policy
declares must not be disintegrated.
That reason does not exist in this case.
Not only does it not exist, but many
J considerations lead us to believe that a
, wiser, more satisfactory management
of railroad may be obtained by @
court which has jurisdiction over, al
least some of the territory wherein the
same is situated, or in which the home
, office of the company is located"
: In his opinion Judge Hanford con
sidered as parts of one proposition the
question of remitting Ives to Judge
Jenkins court as the court of prelim
t mary jurisdiction, and of collateral at
/ tack. The application he said was Q
= direct proceeding and the assertion
that for the court here to take cogniz
ance of the matter was collateral at
tack was untenable. Want of juris
diction apparent on the face of the
record was the ground on which the
attack was made and on such grounds
the rights of the parties to litigate was
not concluded by any decree of the
court whose jurisdiction was ques
toned. The railroad and real estate
of the defendant being immovablt
could not be brought within the juris
diction of the Milwaukee court MOI
could jurisdiction be acquired by tax
ing possession of such assets as money
|, bonds and other securities or railroad
cars migrating over other lines; ant
no consent of parties could give to
court jurisdiction that it never pos
!, sessed. AS to the doctrine of foreclo
sure proceedings Judge Hanford says
, A mortgage may also be forecloset
Q in court having no jurisdiction of the
| person of the mortgagor by proceedin,
, in the rem. if it had jurisdiction O.
4 the res. Proceedings may be of s
e double nature; that is to say, both il
: persona and in rem. This argue,
t nothing, for the elementary principle
that purely personal Judgment is no
I valid against person who has no
been by due process or his voluntar,
3 appearance brought within the juris
Q diction of the court which pronounced
' it remains in full vigor; and proceed
: ings in rem are impossible in a cour
? having no jurisdiction of the res. Now
. as the custody, control and operation
of railroad, through receivers, mus
be pursuant to proceedings in rem, jur
isdiction thereof cannot be ACQUIRED h,
a distant court, although it may hav,
{ jurisdiction to foreclose the mortgage
: by suit in personam.