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MILWAUKEE & M. R. CO. v. SOUTTER , 154 U.S. 541 (1864)

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United States Supreme Court


No. 268

Argued: Decided: February 23, 1864

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from an order made in the suit of Soutter and Bronson, trustees of the second-mortgage bonds of the La Crosse & Milwaukee Railroad Company, against the mortgagor and others, including the appellants as defendants, i the court below, for the foreclosure of the mortgage. The appellants made a motion in the circuit court of the United States for Wisconsin, in which the suit was pending, for an order discharging the receiver that had been previously appointed at the instance of the complainants, and to put the petitioners and present appellants into the possession of the eastern division of the road, with its appurtenances, to [154 U.S. 541, 542]   be run under their superintendence and control pending the suit of the foreclosure.

A like motion was made in the suit on the same day before the United States district court, there being some doubt expressed whether under the act of congress, July 15, 1862, extending the circuit court system to the state of Wisconsin, and the amendment of the same, March 3, 1863 (12 Stat. 576-807), the foreclosure suit then pending in the district court had been transferred to the circuit. This court have decided at the present term that the suit had been thus transferred. The motion in the district court was denied, and an appeal taken to this court, which we have just disposed of. 14 Sup. Ct. 1158.

The motion in the circuit court, which is now before us on appeal, was also denied, and we need only say that one of the grounds for dismissing the appeal in the previous case is applicable to this; namely, that the order, in effect, refusing to remove a receiver and to appoint another rests in the sound discretion of the court, and which is therefore not the subject of an appeal.

The appeal is therefore dismissed.

M. H. Carpenter, for appellants.

N. A. Cowdry and N. J. Emmons, for appellee.

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