MILWAUKEE AND MINNESOTA RAILROAD CO. v. SOUTTER

MILWAUKEE AND MINNESOTA RAILROAD CO. v. SOUTTER. APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES POR THE DISTRICT OP WISCONSIN. No. 268. Argued February 1-9, 1864. Decided February 23, 1864. Milwaukee & Minnesota Bailroad Co. v. Soutter, ante, 540, followed. The case is stated in the opinion. [MAJORITY — Mr. Justice Nelson] Mr. Justice Nelson delivered the opinion of the court. This is an appeal from an order made in the suit of Soutter and Bronson, trustees- of the second mortgage bonds of the La Crosse and Milwaukee Railroad Company, against the mortgagor and others, including the appellants, as defendants, in the court below, for the foreclosure of the mortgage. The appellants made a motion in the Circuit Court of the United States for Wisconsin, in which the suit was pending, for an order discharging the receiver that had been previously appointed at the instance of the complainants, and to put the petitioners and present appellants into the possession of the eastern division of the road, with its appurtenances, to be run under their superintendence and control pending the suit of the foreclosure. Mr. M. H. Carpenter for appellant. . Mr. N. A. Cowdry and Mr. N. J. Emmons for appellee. A like motion was made in the suit on the same day before the United States District Court, there being some doubt expressed* whether, under the act of Congress, July 15, 1862, extending the circuit court system to the State of Wisconsin, and the amendment of the same, March 3, 1863, (12 St. at Large, pp. 567-807,) the foreclosure suit then pending in the District Court had been transferred to the Circuit. This court have decided at the present term that the suit had been thus transferred. The motion in the District Court was denied, and an appeal taken to this court, which we have just disposed of. The motion in the circuit, which is now before us on appeal, was also denied, and we need only say that one of the grounds for dismissing the appeal in the previous case is applicable to this, namely, that the order, in effect, refusing to remove a receiver and to appoint another, rests in the sound discretion of the court, and which is therefore not the subject of an appeal. The. appeal is therefore dismissed.