EATON .,. CLEVELAND, ST.· L. & ·X. O. BV. 00.
421
bank was underauy obligation immediatelrto bonor drafts or cbecks drawn against it; and the evidence is that the understandmg between the customer and the bank wae that no drafts or checks could be drawn upon a deposit until collection. This evidence leaves no l1oubt·that this was the known usage and custom of the bank, and that therefore this deposit was not in fact subject to draft or payment until collection. The evidence, however, is that the amounts collected were duly entered in the returns to the United States officers as of that date of collection, and that payment of the tax was made upon all such collections. Upon that testimony, uncontroverted, it seems to me that the.bank has fulfilled ita whole duty to the governmenthand with perfect accuracy as to time. Under this evidence, the only thing on which t e government could have any claim would be upon those country checks or drafts which were never collected; and Which, ,therefore, did not get into the ultimate returns. But as to those, upon the evidence, it'seems to me perfectly plain that the bank never came under any obligation to honor a draft based upon such uncollected deposits; and such 'deposits, therefore, do not come within the scope of this statute. For these reasons I direct a verdict for the defendant. It .
EATON
v.
CLEVELAND, ST. SHROP
L. & K. SAME.
C.
Rv.
CO.
et aZ.
(Oirewt.t Oourt, E. D. Missouri, E. D. February 21, 1890.) 1. JUDGMENT-POWER TO STAY EXECUTION-FEDERAL COURTS.
The federal circuit court has power to grant a temporary stay of execution of its judgments. '
2·. SAME-RAlLROAD COMPANIES-MEClIANICS' LIENS-FORECLOSURE. , Under Rev. St. Mo. 1879, § 8215,. an execution sale under a jUdgment foreclosing a mechanics' or contractors' lien against a railroad is for the benefit of alllienholderB who have obtained judgment at the time of the sale. 8. SAME. Where judgment had been obtained by 2 lienholders, and 20 or more ft.its to force other liens against the same property were pending, but judgment had not been reached, held that, to prevent a sacrifice of the judgment debtors' interest, and to avoid the expense of, numerous sales, and complications of title resulting from same, the court would temporarily stay execution on the first judgment until other claims were reduced to judgment.
At Law. On motion to stay executions. Taylor « Polla,rd, for Eaton. Cantwell « Edwards, for Shrop. Himm J. Grover, for defendant ,Railroad. THAVER, J. In these cases motions for a temporary stay of execution on the judgments have been filed. When the motions were argued, counsel strenuously contended that the court had no power to grant a temporary stay of execution, and that it would be a clear violation of the rights of the judgment creditors to withhold execution, even for a short period. A cursory examination of that question satisfies me, howthat all courts of common law have power to temporarily stay ecutions on judgments by them rendered, whenever it is necessary to accomplish the enq,s of justice. In Sawin v. Bank, 2 R. I. 383, the court said: ,"Weare satisfied that the court has an entire control over its process, and that it is in the discretion of . the court to grant or stay the execution in eacb
tia," · ,acco,rdingt.;> the cirCfim,sthrices. But tills ,'must;: be 'bdiclal.lY;6xerclsed," e t c . ' ; " .';." . ; In that case it .was held thata,llexecution ought to be stayed when it appeared that the owneroLa judgment against two partners, by 'sion with one of t4em, intendedtl) levy it on the property of qnepartner, contrary to equities existing between .them. In Robinson v. Yon, 8 355, the c o d , r t ' s a i d : " , "Courts of law have full power. to revoke, correct,rp.strain, or quash their own process, 'in,the course of their o\\,P ordinary jUl'isdiction." ' "'In Steertv.Stafford.12 and, A. being insolvent, the court ordered a stay of execution on the judgment against B., until the. decision of a suit then pending, brought by B. against A., basing its right to do so on its common-law powers to stay its own process, when it seemed equitable to do so. In Com. v. Magee, 8, Pa. St. 240, it was held that a judge had power in vacation to make an order staying an execution, and that such order was binding on. the sheriff. In Knox v. HextfJl', 42 N. Y. Super. Ct. 496. a stay of execution was ordered until the termination of a suit brought by the judgment debtor against the judgment creditor, to enable the judgment debtor to offset any had in the pending v. EvarUJ, 64 Mo. 24, where a levy had been suit. In the case of made under an execution on a part of a lot, the whole of which was ered by a building, it that courts ought not to permit their final process to be abused in that manner, but shOUld stay the execution of such process. Mr. Freeman, in his work on Executions, in section 32 68.ys: " "The power of courts to temporarily stay the issuing of executbn is cised in an almost infinite variety of circumstances, in order that the ends of justice may be accomplished. In many cases this power operates almost 3S a substitute for proceedings in equity, and enables the defendant to prevent any inequitable use of the jUdgment or writ." Anq. the note to the case of 00'/71,. v. Magee, 49 Amer. Dec. 513-516, shows numerous cases and a variety of circumstances under which the power has been exercised. While the power to temporarily stay tion on its judgments resides in every" court, it must be conceded that it is a power that ought to be cautiously exercised, and only in those cases where it seems necessary to promote the ends of justice. In other words, it ought not to be arbitrarily used, nor should an execution be withheld merely because it is inconvenient for II judgment debtor to pay his debts. The question to be determined, therefore, is whether the circumstances ofthis case justify the court in withholding execution for a short period. The, facts are that two judgments been obtained in this court foreclosing lien claims for work and labor done in constructing a railroad. The road is not completed yet, but, as the proof shows, considerable road, in different grading' has. been done on various sections of counties, and several hundred thousand dollars have been spent in the of the.work. Other liens than ,those on which judgments have ,been) obtained in this court have been filed Charles
,
L.&K.o.RY. CO.
1123
ren counties, Mo., and suits are now pending in St. Charles county to enforce such liens. According to, the statement furnished me, the lien claims pending elsewhere amount to something over $100,000, and the number of lien claimants are more than 20. Under the laws of this state, (Rev. St. Mo. 1879, § 3215,) a sale under an execution upon a judgment foreclosing a contractor's lien against a railroad is for the efit only of such lienholders as have secured judgment at the date of the execution sale. Lienholders who recover judgment after SllCh sale, have, as it seems, no right to prorate with the ,judgment creditor under whose judgment a sale takes place. The result would seem to be that if a sale takes place under the judgments in this court before the claims pending in the state court a.re reduc,ed tojudgment, the purchaser will acquire all the interest of the judgment debtor, but wiil take the property subject to such judgments as may· thereafter be obtained on the pending liens. In view of the fact that the amount of the incumbrances on the property cannot be definitely known until the other liens are reduced to Ndgment, and in view of the peculiar character of the property, it scareely admits ofadoubt that to allow a sale to take place under the judgments of this court, before any of the other liens have been reduced tojudgment, and are entitled to participate in the proceeds of the sale, would lead to a very coni'iderable sacrifice of the judgment debtor's interest, unless the judgment debtor becomes the purchaser, which in this case does not seem probable. On the other hand, a very short stay of execution on the judgments rendered in this court will clearly not prejudice the judgment creditor's security, and in the mean time the other lienholders, or the majority of them, will have an opportunity to reduce their claims to judgment, and be in a position entitling them to participate in the proceeds of the sale. It seems to the court desirable that the sale, when it occurs. should be for the benefit of as many lienholders as possible,: for the reason before suggested, that it will preventa sacrifice of the property, and for the further reason, that it will avoid the expense of numerous sales, and. the complications of title that might result therefrom., For the reasons indicated, I conclude that the case is not only one in which the court in the exerdse of its discretion may order a temporary stay of execution, but that it is a case in which the court is bound to do so for the protection of all interests concerned. I understand that the: state court in which the undetermined ljen suits are pending, meets on the first Monday in March, and that mQsti if not all, of the liens can be reduced to judgment during that month. I shall accordingly order that execution on the judgments pending in this court be stayed until March 10,1890, which order will have the ef. feet of postponing a sale under the executions until about April 1, 1&90,; 'by which time I.have no doubt that most, if not all, the unliquidate<;l claims will be in a condition to participate in thepl'oceeds of tl:le sale, unless the judgment debtor sees fit to delay the proceedings iJ,l the state COUl't. If the proceedings are delayed in the, state court by the act of the judgment creditor, it will not be incumbent on this court to grant any further stay of final process for its benefit or Pl'otection.
424
.,
FlllDER.&LREPOltTER,
vol.
41.
. UNITED STATES 'V. NORRIS.
(Oircuit Court, W. D. Louisiana. January Term, 1890.) . . P1JBLICi LANDS-HoMESTEAD ENTRY-SALE· Oll' TIMBER-LIABILITY OJ!' PUROHASER ll'ROM TRESPMisER.
In 1879, G. 'made application, aftIdavit, and paid fee required under homestead laws to public land. G. did not go upon the lands, or in any way after that comply with his obligations as a homesteader. In 1883 and '84, G. sold to L. & N. the right to cut the lumber from The latter cut and sold to Norris 500 timber logs, worth $1.25 per thousand,lying cut on the ground; worth U.50 per 1,000 in the float at the mills. Norris purchased them in good faith at the mills. In 1889, G. was allowed by the depal'tment to. become a beneficiary under the act of 1880, by recei>;ingfrom him $1.25 per acre, less the fee paid in 1877, for the land, and gave hIm a patent for the land. Plaintiftnow sues Norris for the value of the timber at the place he bought it from L. & N. Held,thatG., having been shown to have made apJ;lll.catip,n, etc., in 1877, in bad faith, and for the purpose only of appropriating the·timber on the lands, without in any further way complying with the duties imposed on a homesteader. was neither the legal nor eqUItable owner of the land or tl.lIlbe.r .thereon when. L. & N. cut and sold the timber to Norris, in 1883 and 1884' that, *ithout passing upon G.'s title under his patent to the lands, there is nothing iuth.a law forbidding the .{llai.ntiff to hO.ld Norris liable for the. timber cut by L. trespassers on publ1c land, and sold to Norris; that Norris, having bought in good faith, should be held liable for the value of the timber logs at the time they oecame severed from the, landi-that is, for $1.25 per 1,000.
M. Elatner, U. S. Atty. J. L. Bradford, for defendant. BOARMAN, J. At law. Jury being waived, the court finds the following facts: Henry Gill, in 1877, made application and affidavit, and paid required fee under the homestead laws, to enter certain lands lying in Louisiana, then public lands. Gill did not at any time go upon, or in any way improve, the lands. That in 1883 and 1884 he sold to La& Nixon, for a trifling sum,. all his right to cut the timber on said lands. That Lanier & Nixon cut 500 pine from the land, measuring, in all, 125,000 feet. The logs lying cut on the land were worth $1.25 per 1,000, and when placed in the bayou for floating they were worth $5.50 'per 1,000. That W. B. Norris, as the agent of the defend. ant, bought' the said logs for mill timber from Lanier & Nixon at the usual placew'here he bought logs for defendant's mill, in the bayou, in open market, a.t $5.50 per 1,000, and he knew nothing of the fact that they were cut from the said lands. Gill, in i889, was allowed by the land department to become a beneficiary of the'law of June 15, 188D. In making payment for said lands, under that law, he was credited with ·the amount which he had paid in 1877 as the fee required under homestead laws. Gill now has a patent for the lands under provisions of that law. Under this statement of facts, defendant denies liability, at any price, for the said logs. He relies for relief in this suit upon the factsFirst, that Gill made his affidavit and application, paying the fee required of him for said lands, under the homestead laws; second, that he, notwithstanding his failure to go upon, orin any way improve, the lands, was allowed by the land department to become the owner of the landa, in 1889, by e()1nplyingwith the act ofJune 15,1880. The government
a.