BLAIR v.. @8*1*. LOUIS,·iH. e KL R. co. 3i—
In Equity. Foreclosure suit. Demurrer to intervenors’ petition.
The petition states that, prior to the institutionof foreclosure proceed-
ings herein, the intervenors brought suit in the circuit court of Pike
county, Missouri, to enforce their statutory lien for money due them for
work done and materials furnished in constructing trestles, bridges,
etc., along the line of the St. Louis, Hannibal & Keokuk Railroad Com-
pany’s road; that after foreclosure proceedings were instituted herein
against said road, and a receiver appointed, they gave notice to said
receiver of the pendency of their suit, and continued to prosecute the
same until they obtained judgment and were decreed to be entitled to
a lien upon said road for the amount due them. And the petitioners
pray that said judgment be declared a lien on said company’s prop-
erty now in the receiver’s hands, paramount to themortgage sued on
by the complainant.
The trustee and receiver both demur to the petition upon the fol-
lowing grounds, viz.: "(1) That the said petition does not state facts
sufficient to constitute a cause of action; (2) that the said petition
does not state a cause of actionagainst the property and assets of
said railroad company now in the hands of the said receiver superior
to the lien of the mortgage now being foreclosed in this court by the
saidtrustee; (3) that the judgment mentioned in said petition was
obtained against the said railroad company subsequent to the ap-
pointment of the said receiver by this court; (4) that said petition
does not state that said trustee and receiver were ever made parties
defendant to the said action on which said judgment was recovered A
in the said Pike county circuit court."
Biggs at Reynolds, Jas. Carr, and Fogg at Hatch, for petitioners.
Walter O. Larned and Theodore G. Case, for trustee.
J chu O’Grady, for receiver. ·
TREAT, J., (orally.) In the case of Walker v. St. Louis, H. ef K. R. `
C0., a demurrer was interposed to the intervening petition. The
question could have been raised, perhaps, more satisfactorily in the
way of practice, on an application for leave to file; but there is
enough here to enable the court to say that it will not entertain the
petition. The parties preferred to proceed in the state court without
the leave of this court, and they must lie in the bed which they have
made. This court will not help them. The dernurrer will be sus-
tained. '