The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1898-09-23

prepared notion not to set aside and strike
out but for review and modification Of so
much Of the final decree herein rs purports Ia
restore and continue in force the Injunction,
| etc. "
Judge Thayer by an Endorsement on the
| motion. without date, and which has not been
| entered on the journals OF the court overruled
me motion "as Of the day IL was nied. -
| Whether that Endorsement was made October
~ the day Judge Thayer signed the final de-
cree, though the motion was not filed until Oc-
tober 30 or on November l. the date that the
| notice attached to the motion fixed for its
nearing, or at some later date is immateriaL
! On October 30 1877 Judge Horton. one of the
| attorneys for the stock yards company or It's
stockholders. placed on file his affdavit which
| mas not been controverte1 by anything on file
| IN these cases and is apparently the only evil
| dence In support or in opposition to the mo-
! ton which could have been considered by
! Judge Thayer ut the time he overrued the mo-
| tiOn.
That AFFIDAVIT is consistent with the erased
! clause Of the stipulation it is consistent with
the ernsed clauses Of judge Fosters orders. it
| is consistent with the final decree. IL is uncon-
| tradicted on the record. II not true WHY was
| 1t not controversies And why was IL permit
! ted that Judge Thayer overruled the motion as
of the day 1t was filed and no record made of
! the ORDER
The afiidavlt Of Judge Horton and the certif-
cate OF the clerk Of the United States court
| That no afidavit of any one controverting any
| OF the allegations In said affidnvit has ever
| oeen MED in said causes appear below:
JUDGE HORIZONS AFFIDAVIT
ALBERT II Horton, being first duly sworn
| upon oath deposes and says that he is one 81
the solicitors for the compliments In the above
entitled case that he was present in ST. Paul
MINI, on Thursday October T. at the time the
stipulation between the parties herein OF that
date concerning the final hearing Of the fore
going suits was signed and considered by Judge
Sanborn. United States circuit Judge Of the
Eighth judicial circuit, and which said Stipula-
| ton was afterwards duly filed in this court in
this cause on Saturday. October o. 1857: and
this afiant says that at the time that said writ
ten stipulation was considered the said defend
ant Il G. Boyle, attorney general IN the pres
ence OF Judge Sanborn and anant and also OF
Nr wallace Pratt and Mr. j. NJ Woolworth
then and there stated that the status quo OF the
foregoing cases would be continued until the
hearing had before Judge Thnyer for n final
decree agreed upon by the parties to be
had on Monday, October IL. 1907 at two
o'clock p IN, and that in the mean
time the said l.. C. Boyle, as attorney general
would not enforce or attempt TO enforce the
new rates prescribed by the act Of the Kansas
legislature of March g. 1897, relating to stock
yards, and complained Of In said bills of com
plant hled herein. and thereafter when an or
der was made by Hon G. G Foster, at Topeka
Kan. on saturday October 9. 1897, to carry into
effect the written stipulation OF the parties
hled on said date for Il final hearing of said
causes. II was then and there stated by David
Martin, one Of the solicitors OF the said Louis
C. Boyle, that l. G. BOYLE. attorney general
had agreed not to enforce the rates and charges
liked by said Kansas statute OF March g. 1897
until the hearing Of said cases before Judges
Thaycr ana Foster as agreed to-
And this ariant further states that on
Wednesday. October 20 1897 at Topeka KAN
and that at the conclusion OF the hearing of
said argument before Hon A. NJ Thayer the
said l. G.. Boyle. in the presence Of said Judge
again repeated his former statement ana
agreed that the status quo OF the foregoing
suits should continue until decision should be
made ~ said judge. Hon. A. NJ. Thnyer
ANA this aniant further says, that the status
quo OF said cases has been up to this time con-
tnued in good faith by all the parties hereto
including the Hon. l. G. Boyle attorney gem
eral and that since the order Of this court of
June 81, 1897, restraining and enjoinlng l.. c.
Boyle as attorney general OF the state Of Kan
sas from inforcing the provisions of said act
referred to against the Kansas City Stock
Yards company, its officers and agents upon
the condition that the complainants should ex-
ecute and file a bond within 1e days thereafter
with one or more sufficient sureties in the penal
sum Of S75. 900 for the benefit OF the said de-
PENDANTS. including the said l. c. Boyle attor-
ney general The said l. G. Boyle, attorney
general has not nforced or attempted to in
force any of the provisions OF said act up to
this time
'Aniant further says that said bond Of SIS
600 was duly executed by the compainants and
filed In this court in accordance with the order
OF Injunction aforesaid OF June Il, 1891 And
further affiant saith not
ALBERT II. HORTON"
Subscribed and sworn to before me this Both
day OF October A D.. 1891
tSeaLl ID H. MARTIN Notary Public
Ny commission expires September .. 1899
Filed october 30, 1901
GRO f. SHARRITT Clerk
United States OF America.
District Of Kansas IS (
II George L, Sharitt clerk Of the circuit
court OF the United States for the district Of
Kansas do hereby certify, that the above and
foregoing is "a true copy Of the affidavit OF
Albert III Horton, Hled October 80 1897. as the
same appears on file In my ONCE In the above
entitled causes
And further certify that no other or fur
ther aiidavit Of any one controyerting any Of
the allegations In said anidayit OF Albert H.
Horton, filed October 80 1897 was ever filed In
my onicc in said causes
witness my hand and the seal OF said court
at my office In the city Of Topeka, in said dis
ricL this 9th day Of september, ls9a
tSeuD GEORGE H. SHARRirr Clerk
by r. II. HOLT Deputy"
The bond provided by the decree was nled
ana an appeal was pert cted by Ming the rec
ORD In the supreme court of the United States. |
where the case uowlics dormant, no steps hay- |
ing been taken by either party to advance the
same
The only rule of law that authorizes the con-
tinuing in force Of an injunction or restraining
order pending an appeai from q decision Of the |
United states circuit court Is found In equity |
rule 3d. which reads as follows:
When an appeal from final decree IN an |
equity suit granting or dissolvihg an injunc- |
ton is allowed by justice or a judge who took
part In the decision OF the cause. he may In his
discretion, at the time OF Such allowance make /
an order suspending or modifying the injunc- |
tion during the tendency OF the appeal upon |
such terms as to bond or otherwise as he may |
consider proper for the security OF the rights |
OF the opposite party"
The decision Of Judge Foster as made on Oc- |
tober I, dissolved the previous restraining or
ders and denied to the plaintiffs the right of a |
temporary injunction pending the hearing OF
their action. The only thing then left for
them to do was to obey the law until final de-
cision should be reached in the case. The Or
der dissoying the temporary injunction was
not final decree In the case and no appeal
haa lion, tl,.,, .1,f