Citations for Appellees.

of Cincinnati that the parts of the lots, ascertained not to be necessary for the roadway, were sold by the commissioner of that court, one bringing $861 and the other $201, and that the sale was confirmed June 17, 1884.

On the 29th of March, 1884, a decree of foreclosure and sale was entered in the court below, and pursuant thereto the Cincinnati Northern Railway was sold, on the 27th of June, 1885. It brought the sum of $200,000, which was less than its value, the purchasers being the bondholders represented by the Central Trust Company. It is stipulated by the parties that the portion of the proceeds of the sale which by the order of November 20, 1885, was directed to be paid to the appellees, would otherwise go to the appellant.

Mr. Lawrence Maxwell, Jr., (with whom was Mr. Mortimer Matthews and Mr. William M. Ramsey on the brief,) for appellant, cited: Dayton, Xenia & Belfore Railroad v. Lewton, 20 Ohio St. 401; Washington Railroad v. Bradleys, 10 Wall. 299; Ayres v. Carver, 17 How. 591; Ex parte Railroad Company, 95 U. S. 221; Grant v. Phænix Ins. Co., 106 U. S. 429; Crosby v. Buchanan, 23 Wall. 420, 453.

Mr. C. B. Matthews and Mr. J. A. Jordan, (with whom was Mr. I. M. Jordan on the brief,) for appellees, cited: Davis v. Gray, 16 Wall. 203; Whitney v. Cook, 99 U. S. 607; Davies v. Corbin, 113 U. S. 687; Micas v. Williams, 104 U. S. 556; The S. C. Tryon, 105 U. S. 267; Miltenberger v. Logansport Railway, 106 U. S. 286; Whiting v. Bank of the United States, 13 Pet. 6; Perkins v. Fourniquet, 6 How. 206; Beebe v. Russell, 19 How. 283; Thompson v. Dean, 7 Wall. 342; Stovall v. Banks, 10 Wall. 583; French v. Shoemaker, 12 Wall. 86, 98; Railroad Co. v. Swasey, 23 Wall. 405; Green v. Fisk, 103 U. S. 518; Trustees v. Greenough, 105 U. S. 527; Porter v. Bessemer Steel Co., 120 U. S. 649; Munns v. Isle of Wight Railway Co., L. R. 8 Eq. 653; S. C. L. R. 5 Ch. 414; St. Germains v. Crystal Palace Railway Co., L. R. 11 Eq. 568; Walker v. Ware &c. Railway, 35 Beavan, 52; Winchester v. Mid Hants Railway, L. R. 5 Eq. 17; Allgood v. Merrybent

Opinion of the Court.

Railway, 33 Ch. D. 571; Pfeifer v. Sheboygan & Fond Du Lac Railroad, 18 Wis. 155; S. C. 86 Am. Dec. 761; Fries v. South Penn. Railroad & Mining Co., 85 Penn. St. 73; Humphreys v. Allen, 101 Illinois, 499; Langdon v. Vermont & Canada Railroad, 53 Vermont, 228, 265; Union Trust Co. v. Illinois Midland Railway, 117 U. S. 434; Wallace v. Loomis, 97 U. S. 146; Coe v. Columbus, Piqua &c. Railroad, 10 Ohio St. 372; S. C. 75 Am. Dec. 518; Blossom v. Milwaukee Railroad, 1 Wall. 655; Minnesota Co. v. St. Paul Co., 2 Wall. 609; Butterfield v. Usher, 91 U. S. 246; Hinkley v. Gilman &c. Railroad, 94 U. S. 467; Sage v. Railroad Co., 96 U. S. 712; Hovey v. McDonald, 109 U. S. 150.

MR. JUSTICE HARLAN delivered the opinion of the court.

The motion of appellee to dismiss this appeal is denied. If, as contended by him, the order of December 8, 1883, was one from which an appeal would lie, the appeal prayed and allowed on the 20th of November, 1885, would bring that order before us; for, although the bond required by the court was made to operate as a supersedeas only of the order of the latter date, the appeal asked and granted was "of this cause," that is, of the whole cause as far as it had then progressed.

Conceding appellee's lien on the lots to be prior to its lien on so much of the railroad as crossed those lots, the appellant denies that appellee had a lien upon the entire road of the Cincinnati Northern Railway Company. The proceeds of the sale of the whole road, it is insisted, must be distributed between the appellant and the appellee, upon the basis of the proportionate value of the parts upon which their respective liens rested; not, necessarily, the mathematical proportion of the three hundred and twenty feet of the railroad covering the lots in question to the entire length of the road, forty-two miles, but in the proportion of the fair value, all things considered, of the former to the latter. The precise mode of ascertaining this value was not suggested in the argument.

We are of opinion that the appellant is not in a condition to raise the question just stated. It was a party to the suit in the state court, the decree in which provided for a sale of

Opinion of the Court.

the entire road, in the event the sum found to be due the present appellee was not paid by the sale of such parts of the lots in question as were not needed for the railroad. That decree, even if erroneous, was binding upon all the parties to the suit in which it was rendered, until modified or reversed by the Supreme Court of Ohio. It was not open to collateral attack by any of those parties in a separate suit brought by them in the Circuit Court of the United States after the jurisdiction of the state court attached. No order in the former court could interfere with or suspend the sale which the state court had directed to be made. The only way in which such suspension could have been effected was by means of an arrangement that would be satisfactory to the present appellee, in whose behalf the state court had ordered a sale of the entire road. The order made in the Circuit Court on the 8th of December, 1883, shows upon its face that that court was informed as to the exact relation of the parties to the suit in the state court. It declared, without objection by any of the parties, that the sale then about to take place of the entire road, under the order of the state court, "would be contrary to the best interests of all concerned," and that it was necessary to the operation of the road by the receiver of the Circuit Court that the proceedings in the state court for a sale be stopped. The mode adopted to effect that end is indicated in the above order. We need not, however, stop to inquire whether it was proper for the Circuit Court to issue receiver's certificates for claims of the character of those held by the appellee. Upon that subject we express no opinion. We are relieved of any duty to consider that question, because it is apparent that the order of December 8, 1883, was the result of an agreement or arrangement between the appellee and the Central Trust Company, the latter representing in this cause the holders of bonds secured by the mortgage of November 17, 1880,- and also because of the surrender by the appellee, in consideration of the receiver's certificate for the amount of his claims, of the rights accorded to him by the decree in the state court. The appellee cannot be restored to his rights under the decree of the state court, and it would be inequitable

Syllabus.

to permit the appellant, representing those who purchased the property under the decree of the Circuit Court, now to raise any question as to the validity of the receiver's certificates, which it agreed might be issued to the appellee. It remained quiet for nearly two years, and until after the property had been sold, and after the sale had been confirmed to those it represented, before making an issue as to the propriety or validity of the order of December 8, 1883. The bondholders are concluded, under the circumstances disclosed in the record, by what their representative did, or assented to being done, in order to induce the appellee to surrender the rights secured by the judgment of the state court.

The decree of the Circuit Court is affirmed.

HASSALL v. WILCOX.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS.

No. 68. Argued April 2, 3, 1889. Decided April 22, 1889.

A statute of Texas, passed in 1879, gave a lien for wages to mechanics and laborers, on a railroad, prior to all other liens, and authorized its enforcement, in a suit, by a judgment for the sale of the railroad, and provided that it should not be necessary to make other lien-holders defendants, but that they might intervene and become parties. It did not provide for any notice by publication. In 1882, a railroad in Texas was mortgaged to secure bonds. In 1884, a creditor of the railroad company holding such labor claims, in a suit against it alone, in a court of the State, obtained a judgment for his claim and lien, and for the sale of the railroad. In a suit afterwards brought by a bondholder, in the Circuit Court of the United States, to have the rights of the creditors of the company ascertained, and a receiver appointed, it was referred to a master to report on the priority of claims. The creditor by judgment presented his claim; it was objected to by the bondholder as fraudulent and embracing amounts not covered by the statutory lien. The master reported that the claim included amounts which were not a lien, as well as amounts which were, but did not separate them; that the claim was a valid one against the company, but that it was not a lien entitled to priority. The

Opinion of the Court.

court, on exceptions, awarded priority of lien to the claim, for the full amount of the judgment: Held,

(1) The bondholders were not bound by the judgment rendered in a suit to which they were not made parties;

(2) As the claims of the creditor originated after the mortgage was made, he was bound to prove affirmatively, before the master, the existence and priority of his lien;

(3) The evidence before the master did not sustain the lien for the whole amount;

(4) The proceeding in the state court could not be sustained as one in rem, because the adverse claimants did not have even constructive notice of it;

(5) The claim was founded wholly on the statute of Texas;

(6) It was proper that the claim should be reëxamined before a master.

THE case is stated in the opinion of the court.

Mr. Silas W. Pettit, for appellant, cited: Hassall v. Wilcox, 115 U. S. 598; Fosdick v. Schall, 99 U. S. 235; Brooks v. Railway Company, 101 U. S. 443.

Mr. W. Hallett Phillips, for appellee, cited: Hassall v. Wilcox, 115 U. S. 599; Fosdick v. Schall, 99 U. S. 235; Jeffrey v. Moran, 101 U. S. 285; Union Trust Co. v. Souther, 107 U. S. 591; Union Trust Co. v. Walker, 107 U. S. 596; Burnham v. Bowen, 111 U. S. 776; Union Trust Co. v. Morrison, 125 U. S. 591, 607.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 18th of February, 1879, an act was passed by the State of Texas, (General Laws of 1879, c. 12,) entitled “An act to protect mechanics, laborers and operatives on railroads against the failure of owners, contractors and sub-contractors or agents to pay their wages when due, and provide a lien for such wages," which provided as follows:

rail

"SECTION 1. Be it enacted by the Legislature of the State of Texas, That all mechanics, laborers and operatives who may have performed labor in the construction or repair of any road, locomotive, car, or other equipment to a railroad, or who may have performed labor in the operating of a railroad, and