EX PARTE FLEMING, 69 U. S. 759 (1864)

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U.S. Supreme Court

Ex Parte Fleming, 69 U.S. 2 Wall. 759 759 (1864)

Ex Parte Fleming

69 U.S. (2 Wall.) 759


A party asking this Court for a mandamus to an inferior court to make a rule on one of its ministerial officers, as the marshal, must show clearly his interest in the matter which he presents as the ground of his application.

The La Crosse & Milwaukee Railroad Company, a railroad company of Wisconsin, had mortgaged its road and other property to secure certain negotiable bonds which it had issued. The bonds not being paid, a bill of foreclosure was filed in the District Court of the United States for the Wisconsin district, the only federal court then in that state, and which court had at that time circuit court powers. The railroad &c., was sold by the marshal, who reported his sale to the district court. The sale was confirmed by that court and the purchaser placed in possession.

About the time, however, when this report and confirmation was made, Congress passed certain acts establishing a Circuit Court for the Wisconsin District, transferring to the new tribunal, with certain reservations and limitations, the powers which had previously been exercised by the district court. The extent, however, of the reservations and limitations above referred to was a matter not absolutely above question. However, this Court, in a case decided at the last

Page 69 U. S. 760

term, in reference to a part of the same suit now brought forward, had adjudged that the reservations and limitations were not of as extensive operation as was then contended by counsel that they were, and that certain orders made by the district court in this same proceeding were void, the right to make them having passed by the acts of Congress to the new tribunal. [Footnote 1]

In this state of enactments and decision on them, one Fleming, conceiving that the right to confirm or set aside the sale above mentioned, had also passed to the circuit court, petitioned that court for an order on the marshal to report to it the sale which had been made by that officer under the decree of the district court.

He set forth in his petition that he was the equitable owner of certain of the bonds (describing them by number), to secure which the company had made its mortgage; which bonds he showed that he had bought of one H. G. Weed.

It appeared, however, by documents which he annexed to his petition and referred to, that when the La Crosse & Milwaukee Railroad was about to be sold under the decree of foreclosure, a number of its creditors formed themselves into a consociation, with a view of buying it in, and of reorganizing the road with a new name, that of the Milwaukee & St. Paul Railway. These creditors, acting for themselves and all who should become "assentents," and making in writing a scheme of reorganization, to which other creditors might assent -- appointed certain persons, Seymour and others, to act as agents and trustees in the whole matter of all persons who chose to deliver their bonds to them for use in the contemplated purchase. This scheme of reorganization made Seymour and the others agents of all the "assentents," giving them power "to do any and all things which they deem for the benefit of the holders as fully as they might do if personally present," and authorizing them

"in relation to all matters, exigencies and things not herein

Page 69 U. S. 761

specifically provided for to exercise a liberal discretion, except to oblige us personally for the payment of money."

Weed was an "assentment," and deposited his bonds, getting in return a certificate of interest in the embryo Milwaukee & St. Paul Railway Company. The La Crosse & Milwaukee was sold under the decree of foreclosure. The agents &c., purchased it, and it was now reorganized as the St. Paul & Minnesota Railway Company; the managers of that company being put, on confirmation of the sale, into possession of the road. All this, as it was to be collected from Fleming's petition and the documents annexed to it, was prior to his purchase of the bonds from Weed. In fact, the date of his purchase, as stated by him (September 26, 1863), was after the marshal's sale and the confirmation by the district court.

Being dissatisfied with the sale as made by the marshal and confirmed by the district court, Fleming petitioned the circuit court for the order as already mentioned. That court refused the order.

Page 69 U. S. 762

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