The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-09-03

/ hsd gone into the hands Of the receivers
must necessarily hang or depend upon the
case in which the receivers were already
proceeding in the administration of the
defendants estate, and IL is said that the
complainant was compelled TO initiate the
foreclosure SUIT IN the circuit court for the
Eastern district of Wisconsin. because the
court had acquired complete jurisdiction
over the corpus Of the defendant corpora
ton BY the proceedings in the creditors
suit IL is because of this argument that I
have examined closely the grounds for
jurisdiction shown by the records in the
creditors suit, and for the reasons stated
IL is my conclusion that the record shows
affirmatively want OF jurisdiction in that
court, because / must regard that suit as
a proceeding purely IN rem in a court
which did not have jurisdiction OF the res.
The foreclosure suit. viewed as a depend
ent upon the creditors bill. adds nothing
70 the jurisdiction OF the court al Milwau-
kee, for ii must certainly fall whenever
the original case upon which It is hung
/ falls.
A Fatal Defect.
II has been argued that suit 70 fore
close n mortga upon railroad or other
real estate is a transitory action. and the
court at Milwaukee acquired jurisdiction
of this case by the voluntary appearance
of the mortgagOr and mortgage. 1t Is
true that a mortgage may be foreclosed by
a suit in personam in a court having Jllris-
diction OF the parties. and such a court
may, by coerCive measures. compel the
mortgagor TO transfer the title to mort
gagged premises. situated beyond its juris-
diction. mortgage may also be fore
closed in a court having no jurisdiction OF
the person OF the mortgagor by proceed
ing in rem If il has jurisdiction of the res.
Tho proceedings may be OF a double ma
ture: that is 70 say. both in personam and
in rem. This argues nothing. For the
elementary principle that a purely per-
sonal Judgment is not valid against a per-
son who has not been by due process or
his voluntary appearance brought within
the jurisdiction of the court which pro-
nounced it remains in full vigor. And pro-
ceedings in rem are impossible in a court
having no jurisdiction OF the res. Now. as
the custody, control and operation of a
railroad through receivers, must be pur-
suant TO proceedings in rem. jurisdiction
thereof cannot be acquired by a distant
court, although IL may have Jurisdiction
to foreclose the mortgage by a suit in per-
sonam.
Many authorities have been cited. but
none to controvert the foregoing PROPOSE
ton. In the case of Muller VS. Dows "a
L. 3, page AZ, the supreme court affirmed
the validity of a decree foreclosing a mort
gage upon railroad situated partly in
Iowa and partly in Missouri by the United
States circuit court for the district of
Iowa. But in that case, although the court
rendered decree foreciosing the equity
Of redemption and ordered a sale of the
railroad as an entirety, it did not assume
to transfer title TO that part of the rail-
road situated in Missouri, but compelled
the owner to convey the title, and il was
the act Of the mortgagor in conveying the
title which the supreme court sustained.
In commenting upon the law of the case,
Mr.. Justice Strong uses the following sig
nificant language.
1T is here undoubtedly a recognized
doctrine that a court Of equity, sitting in
a state and having jurisdiction of the per-
son, may decree a conveyance by him OF
land in another state, and may enforce the
decree by process against the defendant.
True, it cannot send its process into that
other state, nor can II deliver possession
of land in another jurisdiction. but II can
command and enforce a transfer OF the IL
tie. And there seems TO be no reason why
It cannot, in a proper case, effect the
transfer by the agency Of the trustees
when they are complainants."
The Real Object of the Suit.
The case IN hand is one in which cred
itoTs and stockholders first commenced
the suit for the avowed purpose OF placing
the operations of the railroad under con-
troll Of a court of chancery, and in which
afterwards the trustee for the mortgage
a
for the purpose OF foreclosinS the mort
gage, but in view OF the time which has
elapsed since the foreclosure suit has
been pending, and the manner in which
the case has been Suffered 10 slumber,
the court is justified in saying that it has
been intended to really foreclose the mort
gage in the usual manner OF foreclosing
mortgages. 1t is not the wish or purpose
of the parties 10 sell the mortgaged prop
erty rs an entirety, at least not until some
scheme for reorganization can be perfect
ed. In short, the real purpose of the fore
closure suit is the same as in the original
suit Of Winston and others. The case Of
Muller vs.. Dows certainly cannot support
the claim of jurisdiction in the court at
Milwaukee of that part OF the case which
is essentially proceeding in rem.
Receivers Must Answer Charges.
II is my conclusion that it is the plain
. duty of this court to take Cognlzance of
the charges made against the receivers,
and the allegations Of the defendant in
( asking for their removal Although Il is
true that this court appointed Messrs.
Cakes. Payne and Rouse because they
! had been previously appointed by another
| court, and did not in the choice Of rece.v-
| ers. exercise IT'S independent judgment.
still their appointment stands as the act
/ Of this court, and before the court can
consistently with justice vaCate is order
appointing them, !, must give them an
opportunity 70 make fun answer to the
/ allegations Of the defendant, contained in
the affidavit OF Mr.. Ives.
The court therefore orders that the case
| be set down for further hearing, upon
date 70 be fixed, as 10 questions relating
| to the fitness OF the receivers. 10 serve in
that capacity. ard the grounds for their
removal from office. set forth in sad IT.
dav5t and that at least ten days prior -
the date of said hearing. they respond -
sa.d AFFIDAVIT by answer. plea or demurrer,
as they may elect