Stokes v. Williams

WOOLLEY, Circuit Judge

(after stating the facts as above). [1] This appeal was met by a motion to dismiss. The motion was made upon the contention that the decree appealed from was not final, in that the amount of dividends to inure to purchasing creditors from the sale made thereunder, as well as controversies certain to arise, remained to be determined by other and subsequent decrees, and that until so determined, no appeal can properly lie to this court. The contention was based upon the idea that the finality required by law upon which to predicate an appeal from an order or an act of a court, is the final or last one of a number of actual or possible decrees entered or to be entered in the course of a proceeding, rather than that finality -which completely ends and entirely disposes of the matter, to which it relates, and which leaves the aggrieved party no adequate remedy except recourse to an appeal. Odell v. Batterman Co., 223 Fed. 292, 295, - C. C. A. -. It is unnecessary to discuss this contention. Viewing the character of the decree-from which this appeal was taken, it is sufficient to say, that the decree was a decree of sale, that objections to its terms were made, heard and adjudged before it was entered, and that confirmation of the sale made thereunder or other subsequent action by the court in respect thereto, was neither contemplated nor required. Upon sale under the decree, title to the property vested in the purchasers, and the proceedings thereafter related only to the disposition of the proceeds. The final act of the court with respect to the sale of the corporation’s property was embodied in the decree of sale. For relief against the sale, therefore, resort can alone be had to an appeal .from that decree, and may be had without awaiting the further orders of the court respecting the distribution of proceeds or the discharge of receivers. Blossom v. Railroad Co., 1 Wall. 655, 17 L. Ed. 673; Butterfield v. Usher, 91 U. S. 246, 23 L. Ed. 318; Sage v. Railroad Co., 96 U. S. 712, 714, 24 L. Ed. 641; National Bank v. Shedd, 121 U. S. 74, 7 Sup. Ct. 807, 30 L. Ed. 877; Maxwell v. McDaniels, 184 Fed. 311, 314, 106 C. C. A. 453. The motion to dismiss the appeal is denied.

*153 [2] Of tlie errors charged to the District Court in authorizing the acceptance of the offer of the creditors’ committee and ordering a sale of the corporation’s property, the first is, that the District Court erred in requiring the objecting stockholders to protect the estate against loss arising from the rejection of the offer, by furnishing a bond in an amount which they deemed oppressive and prohibitive.

When considered with respect to the purpose for which the bond was required and not with regard to the financial ability of the appellants to furnish a bond for a large amount, we are of opinion that the amount demanded was not disproportionate to the protection it was intended to afford. The offer which the appellants sought to have rejected embodied a cash consideration and the release of obligations, amounting to $411,000. The bond which the court required of the appellants for the protection of the estate upon the rejection of that offer, was for the amount of $400,000. The offer was sufficient to discharge all debts of the corporation. The appellants urged its rejection without offering anything in its place other than a contention that a right of action existed against certain directors, which if successfully prosecuted, would yield more than enough to meet the demands of creditors. The District Court was therefore confronted with two propositions, one of which was-certain and the other of which was uncertain. It was called upon to adopt one and reject the other. In order not, to deprive the estate of the advantage of a certainty, by which the corporation’s entire liabilities would be discharged, the court wisely required those who sought the adoption of an uncertain procedure to support their faith in it by giving a bond to preserve to the estate the advantages that would be surrendered by the rejection of the offer. The amount of the bond was a matter within the discretion of the court, and as it was fixed at a sum tio more than sufficient to afford the protection required, it is evident that there was no abuse of the court’s discretion upon which to base an appeal. The financial inability of a party to respond to a proper order of a court demanding a bond in a large amount, is not evidence that the amount demanded is, in a legal sense, either oppressive or prohibitive.

[3] Error is imputed to the District Court for failing to refer the issue of (he acceptance or rejection of the offer to a special master with instructions to take testimony and report thereon.

It is neither disclosed by the record nor represented by counsel, that at any time during the pendency of the matter culminating in the order of sale, a motion was made or the idea suggested that the controversy be referred to a master. It is now contended by the appellants that the duty to make such a reference devolved upon the court, if not upon motion of a party, then of its own motion.

We know of no practice or rule of law applicable to this case which raised in the court the duty to refer the matter to a master for any purpose. A reference to a master for decision cannot be made without: the consent of parties, and a reference to a master merely to obtain his assistance is never made unless his assistance is desired. When so desired, the information he may communicate by his find *154 ings, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment of the weight of the evidence. MastIn v. Noble, 157 Fed. 506, 508, 85 C. C. A. 98; Kimberly v. Arms, 129 U. S. 512, 523, 9 Sup. Ct. 355, 32 L. Ed. 764; Basey v. Gallagher, 20 Wall. 670, 680, 22 L. Ed. 452; Quinby v. Conlan, 104 U. S. 420, 424, 26 L. Ed. 800. When the advisory character of the office of a master is considered, it is apparent that the trial judge committed no error when, without the aid of a master, he adjudged the case in the performance of a duty which devolved upon him alone, and in the exercise of a function which he could not abdicate, or delegate to another.

Upon the specification that the court erred in not referring the matter to a master', the appellants state at length in their brief what testimony might have been produced before a master, the substance of which was presented to the court by affidavits, but-the appellants fail to cite authority for their contention that it was the duty of the court to make such a reference and that failure to perform that duty constituted error.

[4] Error is assigned to the District Court for decreeing a private sale of the corporation’s property upon the terms proposed by the offer, without requiring public notice thereof by advertisement or otherwise. This specification of error suggests two questions, neither of which was presented to or considered by the court below, and but one of which is raised on appeal. The first is the power of the court to authorize x'e'ceivers to accept an offer to purchase property at private sale, and the second is the legality of an order to sell property pursuant to the acceptance of such an offer. The two questions are inevitably linked together, for without the power to accept such an offer, a sale based upon an acceptance thereof must be illegal, while on the other hand if the court had the power to accept the offer, it would be difficult to hold that an order to sell in pursuance therewith is not legal. '

By the statute of the state of New Jersey (P. L. 1896, p. 298) prescribing the appointment, powers and duties of receivers, under authority of and in conformity with which the District Court acted, receivers are empowered to sell, convey and assign the estates, rights and interests of the corporations for which they act. Being officers of the court and being so empowered, courts of equity of the State of New Jersey order and direct receivers to sell and dispose of the property of corporations over which they have jurisdiction. Having p'ower to order the sale of a corporation’s property, the courts find, by necessary implication, that they likewise have power to determine and control the terms of such sales, and authorize their receivers to accept such offers as in the discretion of the courts are deemed advantageous to the administration of the affairs of the corporation. When the terms proposed contemplate a private sale, the courts are confronted by nothing in the statutes, so far as we are informed, which prescribes the character of such sales or the manner in which notice thereof shall be given. The courts of the State of New Jersey, therefore authorize receivers to sell either at public or private sales (Rogers v. R. L. Co., 62 N. J. Eq. *155 111, 50 Atl. 10; Leary’s Case, 5 Dick. [50 N. J. Eq.] 383, 25 Ad 197), and in conformity with the practice of the State courts, the District Court of the United States for the District of New Jersey, authorizes the acceptance of offers, and in default of better bids, decrees private sales of corporate property, without notice by advertisement. Shelling v. Mercantile Co-Operative Bank (1903) no opinion filed; Loeb v. Oriental Metal Bed Co. (1913) no opinion filed; Keller v. Liberty Hat Mfg. Co. (1914) no opinion filed; Dickerman v. National Machine Co. (1911).

Notice of the offer of purchase and the terms of the offer having been given each creditor and stockholder of the corporation, and opportunity haring been afforded them to object to its acceptance or make a better offer, we arc of opinion that no inequity was committed in ordering* die sale without public advertisement, and are not inclined to find error in a practice adopted and pursued by both the state and federal courts in New Jersey.

[6] The remaining assignments of error are addressed in general to the action of the court in authorizing the acceptance of the offer of the creditors’ committee and decreeing a sale upon its terms. Upon application by the receivers to that end, there was uncovered the trouble which had been brewing within the corporation for years. It was made acute by one of the terms of the offer, which provided for the sale and assignment of the corporation’s choses in action, which, it was contended by the objecting stockholders, included the corporation’s right of action against certain of its directors and the Otis Elevator Company for fraud and for a violation of the Anti-Trust Law, and it was further contended, as the purchasers were, or substantially represented, the very persons against whom such right of action existed, all hope of recovery would be lost if that right of action passed to them.

’On appeal, the case at first appeared to. be argued upon the theory that the appellant stockholders were afforded no opportunity to make, objections to. the sale, or to note exceptions to its confirmation, and therefore, they were prejudiced in their rights without being heard. This court inquired and requested to be informed of the practice of the courts of New Jersey with respect to judicial sales and confirmation thereof. It developed that there was a practice with respect. to sales by receivers, followed by the District Court in this case, where the terms are stated and approved before the orders therefor are made, and where, therefore, subsequent confirmation is neither required nor necessary. Under that practice, the right to object to a sole is preserved, and whether that right is required to be exercised before or after the sale is unimportant in principle. The important thing is, the right exists, and in this instance it was resorted to aud exercised.

The receivers had an offer to purchase the property of the corporal ion. They applied to the court for authority to accept the offer and to sell upon its terms. Notice thereof was given the appellants. They objected. Authority to accept the offer and to sell was made nisi, that is, unless the appellants, by a future day, should show cause *156 why the sale should not be made, upon the terms offered, or secure a better bid. They produced no better offer, but submitted to the court and addressed to its discretion the matters a'nd allegations upon which they based their objections. These were heard, considered and rejected and the order of sale was subsequently made absolute. In this, error is charged to the court. In what is error charged? Admittedly in the decision or judgment of the court that the matters offered as objections were not sufficient to justify the court to reject the offer and refuse the order of sale. But the acceptance or rejection of the offer, and the making or withholding an order of salé, were matters wholly within the discretion of the court. Being matters within the. discretion of the court, the question on appeal is not whether this court would have made the same order, but whether the District Court, in making the order, abused its discretion. In treating this question, we conceive we are controlled by the same principle that applies in a case where an appellate court is asked to review and reverse the judgment of a trial court in granting or refusing a temporary injunction. In both instances, the right to exercise a sound judicial discretion is vested in the trial court, and not in the appellate court. It is to the discretion of the trial court and not to the appellate court, that the law has intrusted the power in one instance to order a sale as in the other to grant or dissolve an injunction, and the only question for an appellate court is. Does the proof clearly establish an abuse of that discretion by the trial court (American G. S. Co. v. Twin City S. Co., 202 Fed. 202, 206, 120 C. C. A. 644; Stearns-Roger Mfg. Co. v. Brown, 114 Fed. 939, 52 C. C. A. 559), for unless such an abuse is clearly established, or an obvious error has occurred in the application of the law, or a serious and important mistake has been made in the consideration of the proof, the judgment of the trial court must be taken as presumptively correct. Mastin v. Noble, 157 Fed. 506, 508, 85 C. C. A. 98.

Applying these well settled principles to the case under consideration, we are unable to find that the trial judge abused the discretion reposed in him, or committed error of fact or law in exercising his discretion. The case therefore, must rest upon his judgment.

The decree below is affirmed.