2 I FEDERAL REPORTER•
use, the party complainant, on the tenth of July last, suddenly took
possession thereof, and really occupies no other position than that of
a naked trespasser, invoking the aid of the court to protect him in
his trespass. Certainly that is not the province of an equity tribunal.
The dedication is suilicient either under the statutory requirements
or under the ordinary rules of law for such purposes. Here was this
property, a continuation (evidently so designed) of Main street. Com-
plainant’s original track would cross Main street, and to prevent ob-
struction of that street in that direction the dedication was made.
I wish to say, and I have the full concurrence of my brother
Bnawnn, that these csv parte applications which are made to the court
without notice to the other party should be considered as exceptions
to the general rule. Prior to therecent statute the courts didnot
grant a provisional injunction except on notice had, whereby both
parties might be heard. This case serves to illustrate. A party comes
before the court and states that irreparable mischief will ensue—and
it so appeared to the court in this case——by interrupting its action as
arailroad, by tearing up its tracks, etc.; consequently it was neces-
sary that a provisional order should be had to prevent that sort of
action until the motion could be formally heard upon notice. The
_ court was bound to act in the matter, and it did so act. Now, it turns
out that the plaintiff, so far as the case has developed, has no foot-
ing whatsoever to stand upon. Therefore, as far as the matter of
practice hereafter is to be concerned, the exception must be estab-
lished by amdavits or otherwise, so as to show that irreparable mis-
chief will happen, before hearing can be had on notice given.
The injunction heretofore granted is dissolved, and the provisional
» injunction asked for is denied. The party may proceed to final hear-
ing, or take such other course as he deems advisable.
Bum v. Sr. Louis, H. & K. B. Go. and others. (Wsmcmn and
another, Intervenors.)‘
, (Circuit Court, E. D. Missouri. June 16, 1885.)
Rncarvnas-Pnosaoorron or Sum- ro Eruronoa Brsruromr Lmn ON Momesemu
Pnormnrr IN Rmcmivmivds HANDS wrrnourr LEAVE on Cover.
Where, during the pendency of a suit in a state court to enforce a statutory
lien on mortgaged railroad property, for work done and materials furnished,
foreclosure proceedings are instituted here, and a receiver is appointed and
takes possession, and the plaintiff in the first suit continues to prosecute it
without obtaining theleave of this court, and finally obtains judgment and is
· decreed to be entitled to a lien for the amount due him on such property,
this court will not entertain a petition to have such judgment declared a lien
on the property in its receiver’s hands, paramount to that of mortgage creditors.
1Reported by Benj. F. Rex, Esq., of the St. Louis bar.