by appeal or writ of error. The authorities at common law seem to differ somewhat as to whether, in addition to the writ of certiorari, an order of supersedeas should be issued to or by the inferior court. Perhaps the better authorities are that the certiorari, when awarded, and notice thereof given, was in itself a supersedeas. We think this is the effect of the certiorari granted under this act of 1891 by the supreme court. In the case of Ewing v. Thompson, 43 Pa. St. 377, Judge Strong, afterwards Justice Strong of the supreme court, in discussing the effect of a writ of certiorari, speaking for the Pennsylvania supreme court, says: "Very many English as well as American authorities are collected in Patchin v. Mayor, etc., 13 Wend. 664. There are very many others, all holding a commonlaw writ of certiorari, whether issued before or after judgment, to be, in effect, a supersedeas. There are none to the contrary. In some of them it is ruled that action by the inferior court after the service of the writ is erroneous; in others it is said to be void, and punishable as a contempt. They all, however, assert no more than the power of the tribunal to which the writ is directed is suspended by it, that the judicial proceedings can progress no further in the lower court." In McWilliams v. King, 32 N. J. Law, 23, it is held that at common law a supersedeas was issued by the inferior court after the certiorari was awarded, but the New Jersey practice was for the superior court to issue the supersedeas. And the court, in the course of its opinion, said: "But it is to be remembered that the writ of certiorari is of itself and proprio vigore a supersedeas. Neither the inferior court nor the officer holding the process of such inferior court can rightfully proceed after formal notice of its having been issued. Every act done after such notice is not only irregular, but absolutely void; and the parties doing such acts are trespassers." See, also, 2 Hawk. P. C. pp. 400-416; 1 Bac. Abr. "Certiorari,” G; Com. Dig. "Certiorari," G. It would seem from this view that after a certiorari was issued by the supreme court the authority and power of the circuit court of appeals over the proceedings was at least suspended. I find in Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. Co., 163 U. S. 593, 16 Sup. Ct. 1184, this language used by the supreme court in noticing a point which had not been raised in the circuit court, nor assigned for error to the decree in the circuit court of appeals, viz.: "It is admitted that the point is raised for the first time in this court. We have to determine in this appeal whether in our judgment the circuit court of appeals did or did not err, and affirm or reverse accordingly. It is true that our decision necessarily reviews the decree of the circuit court in reviewing the action of the court of appeals upon it, and under the statute our mandate goes to the circuit court directly; but it is, notwithstanding, the judgment of the circuit court of appeals that we are called upon primarily to review. It will be seen then that the judgments of the circuit court of appeals should not ordinarily be re-examined on the suggestion of error in that court in that it did not hold the action of the circuit court erroneous, which was not complained of. We will, however, make a few observations on the point thus tardily presented." In this case there was an appeal from the circuit court of appeals. In the case of Telfener v. Russ, 162 U. S. 170, 16 Sup. Ct. 695, a writ of certiorari was issued by the supreme court to the circuit court of appeals, and the case brought there in that way. In that case the judgment of the circuit court was affirmed by the circuit court of appeals, and reversed by the supreme court. The order is that "the judgment of the circuit court of appeals should be reversed, and the judgment of the circuit court should also be reversed, and the cause remanded, with directions to set aside the verdict and grant a new trial." It does not appear from the report of the case whether the mandate went to both the circuit court of appeals and circuit court, or only to the circuit court. We conclude, in the absence of any ruling or decision of the supreme court that the effect of a certiorari, when awarded in a cause decided by the circuit court of appeals, is to suspend any action that that court may take, or any action that might be taken by the trial court in obedience to the mandate of the circuit court of appeals after the certiorari is awarded; but it does not restore jurisdiction to the circuit court, nor does it give to that court any authority to set aside orders legally and properly made before the writ of certiorari is awarded. It, however, suspends any further action by the circuit court of appeals, or by the trial court in obedience to the adjudication of the circuit court of appeals after the writ has been awarded, or at least when the court is notified of the issuing of the writ of certiorari by the supreme court, and its service upon the circuit court of appeals. It may be that in this case the original complainants may suffer loss and inconvenience by the condition in which this record is, and it might be desirable for some rule to be established by the supreme court or the circuit court of appeals by which the judgment of the circuit court might be suspended upon proper conditions when there is to be an application for a writ of certiorari to the supreme court; but we are strongly inclined to the opinion that this court, in the present condition of the record, cannot grant the order to set aside the judgment entered dismissing the complainant's bill. We will not, however, overrule the motion, but leave it undisposed of until the question is definitely settled as to the power of the court. The fact that notice for an application for a writ of certiorari was accepted by the counsel for defendants on the 12th of October, 1896, and the motion had actually been made in the supreme court before the order of dismissal was entered, does not, we think, affect the question of the court's authority now to set aside such order. The motion of the defendants of the 2d of February to refer these cases to have the damages ascertained must, for the reason already given, be overruled, and for the further reason that by the terms of the injunction bond damage was only to be recovered if it be finally decided that the injunction ought not to have been granted; and in this case it has not been finally decided, but is still pending in the supreme court. We do not now express any opinion as to whether or not damages could be ascertained in the mode suggested by this motion. This motion of the defendants will be overruled, and no order made in the other motion at present. HAMLIN et al. v. TOLEDO, ST. L. & K. C. R. CO. et al. 1. APPEALABLE FINAL DECREES-DENIAL OF RIGHT TO INTERVENE. Certain unsecured creditors of an insolvent railroad company filed a bill against it to wind up its affairs. A suit for foreclosure of a first mortgage on the road was afterwards brought, and was consolidated with the creditors' bill. Certain holders of preferred stock of the company then petitioned the court to be made defendants, and for leave to file an answer and cross bill. This application was granted, subject to the right of the complainants to move to strike out the answer and cross bill. Complainants did so move, and upon the motion an order was entered denying the petitioners the right to intervene, or to file an answer or other pleading. From this order an appeal was taken. Held, that while the allowance or denial of an application to intervene rests in the discretion of the court, and no appeal could have been taken from the original order letting the petitioners in, yet as their application to come in had been granted, and they were thereby made parties, the order subsequently made, which in effect determined that the answer and cross bill presented no defense and no ground for affirmative relief, and dismissed the parties from the cause, was appealable as a final decree. 2. PARTIES TO RAILROAD FORECLOSURES-PREFERRED STOCKHOLDERS. Certain holders of securities of an insolvent railroad company, upon the reorganization of the company and the organization of a new corporation, received preferred stock of such new corporation, the certificates of which recited that the holders were entitled to shares of the preferred, nonvoting capital stock of the company; that the stock constituted a lien on the property and net earnings of the company next after the first mortgage; that after January 1, 1888, the stock would carry interest at 4 per cent., payable only out of the net earnings of the company; that such interest should not accumulate, and coupons representing unearned interest must be surrendered on payment in whole or in part of a subsequent coupon; that after January 1, 1891, the certificates might be converted into common stock, and, if not so converted, would become converted 4 per cent. non cumulative stock; and that the company would create no lien on its road, other than the first mortgage, except subject to the lien of the certificates, without the consent of the holders of two-thirds of the preferred stock. Held, that the holders of such certificates were not creditors of the corporation, but were stockholders entitled to a preference over the holders of common stock, both as to dividends and capital, and as such, having an interest antagonistic to the common stockholders, they were proper parties to a suit for the winding up of the corporation and the distribution of its assets. Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio. The Toledo, St. Louis & Kansas City Railroad Company is an insolvent railroad corporation. In May, 1883, certain unsecured creditors filed a bill in the circuit court of the United States, at Cleveland, Ohio, for the purpose of winding it up and distributing all of its assets justly among its creditors. This first bill was a general insolvent bill, and was professedly filed for the benefit of all creditors, secured and unsecured. A number of other general creditors subsequently joined the original complainants, and were admitted as complainants. Under that bill a receiver was appointed by the circuit court, who took possession of the railroad within the state of Ohio, and engaged in the operation of the same, pending the sale which it was the object of the suit to bring about. Like bills, ancillary in character, were filed by the same complainants within other jurisdictions, and the same receiver was appointed within each jurisdiction. Neither the holders of bonds nor their trustees were made parties to that bill. Subsequently, however, the Continental Trust Company and John M. Butler, claiming to be trustees under a mortgage made by the said company to secure an issue of some $9,000,000 of first mortgage bonds, filed their original bill in the same circuit court for the purpose of foreclosing said mortgage. The creditors who had filed the original insolvent bill, and such others as had made themselves parties thereto, were made defendants. By leave of the court, Samuel R. Callaway, the receiver in possession of the railroad by appointment under the original creditors' bill, was also made a defendant. This bill was filed December 13, 1893. Thereupon the said Callaway was appointed receiver under this second bill, and an order made consolidating the two suits and ordering that they proceed under the style of "The Continental Trust Company et al. v. The Toledo, St. Louis & Kansas City Railroad Company et al." 72 Fed. 92. After answers had been filed by the company and by the general creditors who had been made parties, but before any decree adjudicating any claim or ordering foreclosure, the appellants presented an application to the court to be allowed to become parties defendant, with leave to file an answer and cross bill. This application was granted, and leave given to file the answer and cross bill accompanying the petition, subject, however, to the right of the complainants to move the court to strike them from the files, or to modify same by striking out every averment putting in issue the validity of, or consideration for, the mortgage bonds secured under the said mortgage. This reservation, as shown by an opinion filed with the record by the district judge, was due to the fact that the mortgagee complainants had not fully examined the said answer and cross bill, and desired time to do so. Complainants availed themselves of this leave thus granted, and subsequently gave notice that on the 26th of October, 1895, they would move the court to strike from the files the answer and cross bill theretofore filed, or move the court to modify said answer and cross bill by striking therefrom every averment raising an issue as to the validity of the mortgage bonds, or the consideration upon which they had been issued. The appellants were also notified that these motions would be supported by certain affidavits of persons whose names were set out therein. These motions, with the affidavits filed in their support, were taken under advisement until February 21. 1896, when an opinion was placed on the files denying the claim of appellants to be creditors of said railroad company, or that, as preferred stockholders, they had any lien valid as against creditors, or any right or interest in or to the property of said company antagonistic to the corporation or to the class of common stockholders. Instead, however, of directing the pleadings to be taken from the files or amended, an order was entered, as on motion of complainants' solicitors, denying appellants the right to intervene or file an answer or other pleading. This decree was not finally entered until May 14, 1896, and from it an appeal was prayed and allowed. At the June session of the last term of this court, a motion was made to dismiss this appeal, which, without an opinion, was overruled. The case is now before us for decision of the questions raised by the errors assigned by complainants upon the decree. John H. Doyle and Benjamin Harrison, for appellants. Before TAFT and LURTON, Circuit Judges, and SAGE, District Judge. LURTON, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The allowance or denial of the application of a stranger to be admitted as a party defendant to a pending suit in equity rests in the sound discretion of the chancellor. The denial of such an application is not such a final decree as is the subject of appeal, under section 692 of the Revised Statutes. Such an application is a mere motion in the case, made by one not a party, and is not of itself an independent suit in equity, appealable here. Ex parte Cutting, 94 U. S. 14; Toler v. Railway Co., 67 Fed. 168; Lewis v. Railroad Co., 10 C. C. A. 446, 62 Fed. 218. It follows, therefore, that if no other order had been made in reference to the application of appellants to become parties than that of May 14, 1896, no appeal would lie, and the motion to dismiss should have been sustained. But that is not the situation. The order of Oc tober 19, 1895, when properly construed, made the appellants parties defendant, with the right to answer and file a cross bill. The reservation of a right to require that the answer should present only pertinent and material defenses was an unnecessary precaution, inasmuch as it is always the duty of a chancellor, upon proper exception taken, or at the hearing, to see that nothing shall be suffered to remain in an answer which is not called for by the bill, nor material to the defense. Beach, Mod. Eq. Prac. § 408. Such a reservation did not suspend the application of the petitioners, nor leave their motion to become parties undecided. The reason given for this reservation in an opinion filed by the court August 5, 1895, was that the complainants had not had an opportunity of examining the answer. If the court had continued the motion until the pleadings had been examined, and then denied leave to intervene because the answer made out no substantial defense, the denial would not have been ground for an appeal. But this was not what was done. The motion to be allowed to become parties defendant was not held in suspense or continued, but was decided and granted. From the date of that order they were treated by appellees and, by the court as parties, and were from that time affected by any decree made in the cause. The reservation of a right to determine, on motion of complainants, if they saw fit to make such motion, how far the answer and cross bill so filed contained matter pertinent to the character of the suit, did not operate as a suspension of the motion to be admitted as parties, or give the court any right to summarily dismiss them as parties. The notice given by complainants under the reservation referred to involved a recognition that appellants were parties, and was a concession in that regard. The questions to arise on that motion concerned the pertinency of the answer and cross bill, and it was error in the court to involve that question with a trial of issues of fact or law dependent upon ex parte affidavits. The questions arising upon these motions so set down upon formal notice for October 26, 1895, were not decided by the court until February 21, 1896. 72 Fed. 92. At that time an opinion was filed upon the merits of the claims asserted in the answer and cross bill, holding that appellants were neither secured nor unsecured creditors, and that, as preferred stockholders, they had no interest which was not represented by the corporation. The decree then entered, when construed in connection with the decree admitting appellants as parties, should be interpreted as one denying appellants any relief, upon the ground that neither their intervening petition nor their answer and cross bill showed any such interest in the subject-matter of the case as entitled them to maintain their cross bill, or present any issues or set up any rights by answer. This is the construction we placed on the decree at the former term, and, thus construed, the decree was one upon the merits, and appealable as a final decree. If this view of the rights and interests of these appellants had been taken be |