The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1896-05-17


etc Rzfirozd convszy "a efas-a %
C.zs 80 against the Seattle. LAKE shore
K Eastern. z~xue1 n fzxe- 81 pos7ror-
Ing the sac az tie Lake shors- He nan
ta2sess that tie position taken ty NJ. Al
ttz was sct Law. ara ia Support Of r1s
ecatsnfgon he ctssd FROM she FEDERAL Pc
ysorser s ia T. the case OF Bound w. TIE
Scush czzntra railway. In which sale
cf she road I'D b>~n ordered and so for
Arril II. 1zz1. ard On February = a n7o-
fsoa ~es made 20 postpone the sale. q
Anal decree having bees entered Sc7er-
h~x =. tsz- The chfsf matter Of contest
~zs - 70 the rs1S@ q sale There we're
seFeral hers On the property. ci1eri-ag
81 prsorffy. The btu had been SLED IN BE-
hslf Of the second rsortzags ocsd5ois5ers.
asking foreclosure q tss seco.1 mort
gage. Al parties conczrred Ia the nesses-
s.tT o< sale. the only question was
shcslf rte sale Be free 81 AL teas. % sEo-
sees 10 ls@f1s anterior 70 the second mort
gage I'ze final decree having ben hled
apps4fs .hsrsfrorn we're taken. but DOT
vssnsn sixty days from The fling o. the
ssrxsf order Pending these ssFa<lH mo-
taon WAS made IN the United States cir
czlt court Fshrzary =. for q postpone
rnent Of In. sale fEI ire decision q the
csrs14t court 81 appeals eolld te had. The
coart denied the motion On the ground
fnss the court vas pgH@r1c1s 20 Interfere
ssIth the 1nal decree. The motion was re-
nsxeA IA the circuit eogr- Of appeals.
ana that court being % opinion that the
el~cuit ecsrt was conpstez.; TO acr. re-
fused 20 interfere. especially az no So
rerse1eas had been obtained The
motion vas then made again IA the cir
cuif court. hasec upon The existence 2,
the pendiAz appeal District Judge 81
monitor Ia granting the motion 10 post
pons the sale. said.
-. A. led q .
20 TIE power OF szis court ~ this stage of
tie case The apoes.i pending. 70 grant the
ynctscn. II would seem that rot
vlthsrandinz the court has no power what
ever after IRE szaI decree 70 amend racdi-
f. or alter the principles o. The dscree Z
retains and possesses the power OF coz
trailing ths time o. Its execution
lis there AM reason why there should be
a change % the time OF executing this de-
cree7 TIE final decree orders the sale free
CT all liens. and transfers these LEES to the
fund TIE appeal directly antsgonizes
thia- " the sale took place before the ap-
peal IN heard ard decided and the pur-
chaser Gets a good title, la other words. II
TIRE sale cannot be re<cindet. the appeal
VIII be and n absolutely nuga.ory. Ard
u ire circuit court could exercise n d.s-
erection AMI suspend the sale. and refuses
20 do 10. then by the action OF the circuit
court the decision OF the appeal court IL
either an.icIpa,ed or rendered Of no valve
whAteye-. II on the other hand z decision
OF tbs appeal court, reversing the decree
OF thu circuit court. VII have the effect Of
annuiiinx and setting aside the sale. we
have consequences almost as disastrous to
tire purchaser. who xiiI advance his money
ard assume possession relying upon the
decree and action Of the circuit court.
IL the sale takes place and is fnal.
the lien OF the first consolidated mortgage
bondhoicsrs vii be gone forever. and their
appeal and contention be rendered nuga-
tory and VOID. II may be said that a sup
ersedeas bond would have prevented this.
Bot fiing supersedeas bond Is optional
and not obligatory. The right Of appeal is
absolute The right Of review In the an
peilafe court - equally absolute. II can
not and should not be defeated By the ac-
ton or non-action Of tae lower court.
This consideration alone and the uncer-
ialnty upon this point must enectualiy de-
tar bsddcrs- except Of the most reckless
character. and the exposure OF the rights
OF parties to this suit TO possible destrue-
ton wlsisu be oppressive or iniqustous
The sale VIII be postponed from Aprfl \,
is.a "a week henee) 10 December ~ Isas ;.
Referring 70 Mr.. Aliens citation OF The
case Of Kitchen vs.. Randolph. 20 " g. ~
Mr. Lewis Insisted that this case had bee,
DISTINGUISHED and dsssfiirmed as being 81
authority any longer by the reasons given
In the eecisson % the United States Trnx.
Go. vs. The Wabash Railway. 80 L. S.
~. which. he asserted gave authority for
the court to make an independent order
against the purchaser 10 deposit funds
enough 10 protect the creditors. quoting
from The opinion OF Justice Brown as fol-
lows:
''ii IA vel understood that, IN the fore
closure rf railroad mortgages. Il often be-
comes necessary TO provide for the pay
inent OF preferred claims and TO postpone
all rights Of ordinary creditors, and even
~ the mortgages. and that Is sometimes
done from the necessities Of The case with
out notice 20 all who may be affected
thereby"
Mr.. Ashton.
Mr. Ashton agreed with Mr. Lewis in
thinking the case cited by him closely
parallel He also thought Mr. Lewis
should be heard on another point TO which
be had incidentally referred. viz. that she
present application does 10; involve jaris4
dieslcnal matter. lie thought the doctrine
- caYeat enptor invoked BY Mr.. Allen no.
properly applicable here. He thought the
quotation from Justice Miller a. TO the
close az The term had no reference to
clerical matters He spoke warmly On the
stipulation 20 which Mr.. Allen had re-
fefred. saying that nothing more than
mere schedules OF property bad been
agreed upon and that the question as TO
Whether given property we're embraced un-
der tAc mortgage had never even been
raised. He stated that Ne had agreed 10
a decree on the express condition and as
sarance that no property should be en-
hraccd In the decree that was not en-
hracsd Ia the mortgage. ard furthermore
that schedules woula be furnished him,
which. however. had never been forth
coming.
IA 70 the question Of jurisdiction. Mr..
Ashton SAID he regarded It az 80 elementary
ana wei settled that he had not antgci-
rsated II. ana be suggested that as Il was
Only a. boar tai tAe time set for the sale
t1e cnGtt NJ k~sst direct the master 10 ncst-
Tone the sale long enough 70 have the guee-
tons a; issue thoroughly gone TITO.
Not the riaintiff-~ Fault.
" ,h'S plea Mr. Allen rsplled that II the
defendants found themselves best by an
emergency they bad only themselves 10
hiame ~ Was not tho pialatirs fault The
same matters hal been ~ isssle Cor icn<
ttrue. Counsel hsd waited TIL the expense
q sale. nOtice and the nbe. ana now. al
most or tho very hour % sale. they raised
the cry Of emergency. ana No did 20, think
Il VAS by accident that this had been done
lie criticised the case cite.i by Mr. Lewis
saving that the main paint inveiNei fn IL
was the actual making - the sale, whether
% NaS best - have the sale take place A. A
particular time or not This was not the
present casa AZ sil Herr the peln; az issue
s. af - whether or not the decree itxe..
shan he nodded lie argued that ~ thss
court coglA alter vs. own decree Eve months
affey the close ~ serfn. there wae nothing
to prevent rs DONG ~ ten wears afterwari
sa1 thRi Il FnlNht thus constitute itsssf it,
owH court u review for all tifns He
tAegEht THAT a. the other SIDE had S.s-,fslv
Stood back aai az late 3av trtrrvcS~a =
cN Sos t.An without any reasonable show of