TRIAL. Jury trial in federal court. 5 C. C. A. 603; 26 C. C. A. 528; 27 C. C. A. 393. Instructing jury and receiving verdict on Sunday. 12 C. C. A. 462. Comments of counsel on failure to produce witness. 13 C. C. A. 589. Trial by jury in criminal prosecutions. 39 C. C. A. 275. Additional proofs in appellate court without trial de novo. 67 C. C. A. 600. Operation and effect of motions by both plaintiff and defendant for direction of verdict. 77 C. C. A. 8. Credibility of witnesses or parties testifying as question for jury. 88 C. C. A. 143. TRUSTEES. Citizenship as affecting the jurisdiction of the federal courts. 10 C. C. A. 252; 27 C. C. A. 300. TRUSTS. Assets of corporation when trust fund for creditors. 23 C. C. A. 315. Place of taxation of property held in trust or other fiduciary capacity. 72 C. C. A. 283. UNITED STATES. Estoppe! against. 16 C. C. A. 353. Assignment of claims and government contracts. 22 C. C. A. 650. WAIVER-Cont'd. O maritime liens. 17 C. C. A. 102 Of defense by acceptance of premiums. Of trial by jury in criminal prosecu tions. 39 Č. Č. A. 281. Of right as to district in which suit may be brought. 52 C. C. A. 192, 87 C. C. A. 634. Of right to remove cause to federal court. 66 C. C. A. 612. Of objections to instructions in crim inal prosecutions. 88 C. C. A. 302 WAR. The neutrality laws. 28 C. C. A. 622, WAREHOUSEMEN. Liability of carriers as. 20 C. C. A. WATERS AND WATER COURSES. Abandonment of water rights. 45 C. Nature and extent of power of United Effect of acquisition of territory by Statutory exemptions of building and VENDOR AND PURCHASER. Marketable title. 40 C. C. A. 592. Liabilities of venders of injurious substances or defective machinery and appliances for injuries to persons other than immediate vendees. 57 C. C. A. 5. Right of vendor seeking specific performance of contract to have title perfected pending suit. 80 C. C. A. 354. Deficiency judgments and personal liability on foreclosure of vendors' liens. 82 C. C. A. 488. Necessary and proper parties in suits to foreclose or enforce vendors' liens. 83 C. C. A. 359. WAIVER. Of prepayment of insurance premiums. 13 C. C. A. 292. Competency in federal courts-Following state practice. 5 C. C. A. 602; 21 C. C. A. 278. Method of summoning - Following Misconduct of witness with reference Impeachment and contradiction of par- Excuses for disobedience of subpoenas. 76 C. C. A. 591. Right of accused to be confronted by Credibility of witnesses or parties tes- WRITS. 88 C. NOTES IN THIS ... Page 7 143 Notice of Application for Appointment of Receivers..... 369 497 Negligence of Driver of Vehicle Imputed to Persons Riding with Names of Books or Other Publications as Trade-Marks or Trade- 601 CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS. (158 Fed. 42.) MANN v. GADDIE. (Circuit Court of Appeals, Fifth Circuit. December 24, 1907.) No. 1,619. 1. RECEIVERS-APPOINTMENT WITHOUT NOTICE-STATUTES. Civ. Code Ga. 1895, § 4904, providing that, under extraordinary circumstances, a receiver may be appointed without notice, is merely confirmatory of a principle of equity jurisdiction authorizing the appointment of a receiver without notice in cases of urgent emergency. [Ed. Note. For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 54–60.] 2. SAME. A receiver may be appointed without notice if the defendant is beyond the jurisdiction of the court or cannot be found, or some urgent emergency is shown rendering interference before there is time to give notice necessary to prevent waste, destruction, or loss of the property, or in case notice will jeopardize the safety of the property over which the receivership is to be extended.1 3. SAME-PARTNERSHIP-DISSOLUTION AND ACCOUNTING. The rule that a receiver shall not be appointed without notice except in case of urgent necessity is applicable to a suit by one partner against another for an accounting and for dissolution of the firm. [Ed. Note. For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 54-60.] 4. SAME-Grounds. Plaintiff, defendant, and two others formed a partnership for the purchase and sale of timber rights and lands; it being agreed that defendant and W. should secure options on timber and timber lands, and that plaintiff and the fourth member of the firm should secure purchasers therefor. Defendant and W. obtained options, escrow deeds, and leases, but plaintiff and his partner were unable to procure purchasers, whereupon defendant obtained a purchaser and denied plaintiff's right to participate in the profits of the transaction. Held insufficient to justify the appointment of a receiver without notice to take charge of such options, etc., in a suit by plaintiff for dissolution of the partnership and for an accounting; it appearing that defendant was solvent and willing to give a bond to secure plaintiff's interest in the profits, if any. [Ed. Note. For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 54-60.] 88 C.C.A.-1 1 See note at end of case. 5. APPEAL-RECEIVERS-APPOINTMENT-STAY. Act March 3, 1891, c. 517, 26 Stat. 828 [1 U. S. Comp. St. 1901, p. 550], allowing appeals from interlocutory orders appointing receivers, and providing that the proceedings in other respects shall be stayed unless otherwise ordered by the court, or by the appellate court or a justice thereof, is sufficient to afford the defendant relief in a case where receivers are improperly appointed, whether with or without notice. 6. SAME-INTERLOCUTORY ORDERS-JURISDICTIONAL QUESTIONS. No appeal lies from an order of a federal court refusing to dismiss a case for want of jurisdiction; defendant's objection to the jurisdiction being reviewable only after final decree. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 367, 417, 648.] 7. SAME-DISMISSAL OF BILL. On appeal from an order appointing a receiver, the appellate court will render a final decree dismissing the bill if it appears that there is no equity therein, or that the court has no jurisdiction. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, 8 4575.] 8. COURTS-FEDERAL COURTS-DIVERSE CITIZENSHIP-ARRANGEMENT OF PAR TIES. In a suit in a federal court in which jurisdiction depends on citizenship, the court will arrange the parties as plaintiffs and defendants according to their interest, and, if such arrangement defeats the jurisdiction, the bill will be dismissed. Appeal from Circuit Court of the United States for the Southern District of Georgia. For opinions below, see 147 Fed. 955, 960. Isaac Hardeman, Geo. S. Jones, and A. L. Miller (Miller & Jones, Hardeman & Jones, Haygood & Cutts, and W. A. Wooten, on the brief), for appellant. John I. Hall and Olin J. Wimberly, for appellee. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. SHELBY, Circuit Judge. This is a suit brought by W. M. Gaddie, alleging that he is a citizen of North Carolina, against Frank R. Mann, Thomas J. Wooten, and C. M. Wise, all citizens of Georgia, the Citizens' Bank of McRae, a corporation under the laws of Georgia, and T. P. Trigg and W. E. White, partners composing the firm of Trigg & White, citizens of Virginia. The bill alleges the making of the following contract: "Georgia, Telfair County: "This agreement made and entered into, this 29th day of November, 1904, by and between Frank Mann, Thomas J. Wooten, W. M. Gaddie and C. M. Wise, whereby the said parties are offering for sale a tract of land on the Ocmulgee river (about 17,000 acres) and the said C. M. Wise is to have the sale of said property, and in case of a sale then all parties hereto to share equally in the net profits of said sale. "Witness: A. J. Walker, J. P." F. R. Mann. "Thomas J. Wooten. "W. M. Gaddie. "C. M. Wise. It is alleged that under this contract Mann and Wooten were to secure options on timber and timber lands, and that Wise and Gaddie were to secure purchasers therefor, the profits to be equally divided be tween the four; that Mann and Wooten secured the options, which, in some instances, consisted of escrow deeds and leases, and that these options, deeds, and leases were placed in the Citizens' Bank of McRae, which was to deliver them when the agreed purchase money was paid; that Gaddie and Mann were unable to find a purchaser, and that in 1906 Mann, in whose name the options were taken, secured a purchaser in Trigg & White, who paid $5,000 in cash, and were ready to pay the balance of the purchase money, and that Mann had excluded and ignored Gaddie and Wise, and was denying that they had any interest in the profits. Gaddie, the complainant, therefore prayed for an injunction to prevent the consummation of the trade with Trigg & White and the delivery of the options, deeds, and leases by the bank, for the appointment of a receiver for the options, deeds, and leases, and for an accounting from Mann for his interest in the contract. After the bill was filed, orders were made granting an injunction and appointing a receiver. From the interlocutory order appointing a receiver, this appeal is taken. The 10 assignments of error may be condensed or grouped for the purpose of this decision: First. The court erred in appointing a receiver and in granting the injunction, and in not accepting a bond tendered by Mann. Second. The court erred in not dismissing the case for want of jurisdiction. 1. The bill was presented to the judge and indorsed "Filed" on June 29, 1906, and on the same day the judge made an order at chambers appointing J. A. Dunwoody "temporary" receiver, and ordered him to take possession of the property described in the bill and all moneys arising from the sale of any property described in the bill. An injunction was also issued as prayed for. The learned judge in appointing the receiver held that the case made by the bill was one of "urgency, and which, under the provisions of the Georgia Code, render proper the appointment of a receiver." No notice was given the defendants that an application would be made to appoint a receiver. The Georgia statute provides that: "Under extraordinary circumstances a receiver may be appointed before and without notice to the trustee or other person having charge of the assets." Civ. Code Ga. 1895, § 4904. We have had occasion heretofore to decide that this statute is only confirmatory of a principle of equity procedure and jurisdiction. Joseph Dry Goods Co. v. Hecht, 120 Fed. 760, 764, 57 C. C. A. 64. In the absence of this statute, under extraordinary circumstances, a court of equity may appoint a receiver without notice. The extraordinary circumstances referred to in the statute are the exceptional cases which sometimes occur, and which make it necessary that the court should have the power to act without notice to the defendant. A defendant may be beyond the jurisdiction of the court, or cannot be found, or some urgent emergency may be shown rendering interference, before. there is time to give notice, necessary to prevent waste, destruction, or loss; or a case may arise in which notice itself would jeopard the safety of the property over which the receivership is extended. Moritz |