The Birmingham age-herald., 1908-03-26
COURT OF APPEALS.
Lower Court Affirmed In Case of South ern Railway Vs. Lemon Townsend.


 New Orleans, March 25.-(special)-T following opinions were handed down in the United States circuit court of appeals for the Fifth circuit yesterday
 l901-Southern Railway company vs. Lemon Townsend, appeal from the circuit court of the United States for the North ern district of Alabama. Before McCor- mick, circuit judge, and Newman and Burns, district judges. Opinion by New man, D. J.:
 This action grew out of suit instituted by Lemon Townsend against McGhee and F1nks, receivers of the Memphis and Charleston railroad, for damages on ac- count of personal injuries sustained through the alleged negligence of the de- 1endant railroad. During the pendency Of this suit the Memphis and Charleston railroad passed into the control of the southern railway, the receivers were dis charged and their bonds cancelled. On March 16. 1898, a special master was ap- pointed by the court for the purpose of taking proof and reporting upon all claims arising within the Northern district of Alabama. Subsequently to the discharge or the receivers, Lemon Townsend filed petition in the circuit court setting out the fact of the appointment of McGhee
 
 operation of the road till 1898 when the order was made discharging them; that the Southern Railway company had be- come the purchaser of the railroad prop erty and were subject to the unpaid obli- gations and liabilities incurred by the receivers. The petition also sets out the fact of his injury in 1896, etc He prayed that decretal order be made by the court appointing receiver as successor to McGhee and Fink against whom he might determine his action for damages This petition was answered by the South ern railway, which defended on the ground that the court had required all claims to be filed by September "A, 1S98 and that although notice had been given him, Lemon Townsend had failed to come in and make proof of his claim, by req son of which he was barred of any right or claim against the Southern Railway company.
 Judge Jones decided that trust exist ed which might fail for want of a trus- tee if no successor should be appointed to fully execute the trust and conserve the rights of those interested in the pend ing claims. Edward F. Greenleaf was thereupon appointed receiver practically for the purpose of defending such claims as might be tried against the railroad estate It is from the granting of this decree that the present appeal is taken.
  there was no error in the action of the court appointing Greenleaf receiver for the purposes stated and with the restrict ed powers named and therefore the de- cree of the lower court is affirmd.
 Burns, district judge, dissented from the opinion of the majority. From a review of the facts in the case the situation ob- tains that Il years after the institution of the action at law and ten years after the final discharge of the receivers, it is deemed equitable that receiver should appear and defend in order that a pre- sumed or possible trust might be the more fully and equtably administered. By amending his petition, setting up the discharge of the receivers, making the purchaser the Southern Railway com pany, party defendant, under the terms of the decree fixing the liability for the acts of the receivers. the plaintiff, upon verdict, would have been entitled to his execution. It may be observed that the order of the court appointing Greenleaf receiver will defeat tn very object which the plaintiff has in mind. in that the plaintiff and the receiver being resident citizens of Alabama the circuit court will be without jurisdiction of the parties and, aside from this, the statute of linn itation will be as available to the receiver as to the purchaser.