Argument for Petitioners.

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tirely in accord and arranged together that the suit should be brought in the Federal court and that the averments of the bill should be admitted by the answer. But there was no colorable assignment of some claim to a citizen of another State, nor any misrepresentation or distortion of facts to mislead the court. On the contrary, examination of the books shows that the financial situation is precisely such as was averred in the complaint."

And in relation to extending the receivership to the Metropolitan Railway Company and allowing that company to be made a party defendant, the court said:

"Having taken its entire property into possession of the court under conditions which left it powerless to recover the same for a year, the receivership left it wholly without means to meet its obligations and it seems to be clearly the duty of the court which has thus deprived it of its resources to protect it against execution while receivers handle and distribute those resources."

Mr. Roger Foster for petitioners:

The petitioners are entitled to the remedy by mandamus. Otherwise, they will be enjoined from proceeding in their suits and collecting their claims without a hearing upon a motion to dissolve the injunction, and without any right to review the injunction order and the subsequent order continuing the

same.

There are two fundamentals of the common law, which are essentials of that due process of law which is guaranteed by the Constitution. Where there is a right there is a remedy. Ashby v. White, 1 Salkeld, 19. No person can be denied a hearing before he is prevented from asserting a claim of right. Pennoyer v. Neff, 95 U. S. 734.

Intervenors have no right of appeal, except possibly in the case of an intervention after judgment upon an application to share in a fund in court; and they never have a right to appeal from an order denying their right to intervene and defend a

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suit. Ex parte Cutting, 94 U. S. 14; Jones & Laughlins L'd v. Sands, 79 Fed. Rep. 913; Credits Commutation Co. v. United States, 91 Fed. Rep. 570, 573; S. C., 177 U. S. 311; Toledo, St. L. & K. C. R. Co. v. Continental Tr. Co (C. C. A.), 95 Fed. Rep. 497, 536.

If they attack this judgment collaterally, they cannot object because of a failure of the requisite difference of citizenship between parties to a controversy in the same. Kempe's Lessee v. Kennedy, 5 Cranch, 173, 185; Skillern's Ex'rs v. May's Ex'rs, 6 Cranch, 267; Cameron v. McRoberts, 3 Wheat. 591; Des Moines Nav. Co. v. Iowa H. Co., 123 U. S. 552, 557, 559; Dowell v. Applegate, 152 U. S. 327, 337-341; Pullman's P. C. Co. v. Washburn, 66 Fed. Rep. 790. See also Ex parte Richards, 117 Fed. Rep. 658; In re Lennon, 166 U. S. 548; Conkling Co. v. Russell, 111 Fed. Rep. 417; Hollins v. Brierfield Coal Co., 150 U. S. 371..

The duty to dismiss the proceedings is statutory. The facts showing that there is no controversy and consequently no jurisdiction, have been found by the judge and are not disputed. There is no room for the exercise by the Circuit Court of judicial judgment or discretion. This court has jurisdiction to issue the appropriate writ in a case like this. Ex parte Wisner, 203 U. S. 449; United States v. Severens, 71 Fed. Rep. 768; S. C., 18 C. C. A. 314. ·

The entire proceedings are void for want of jurisdiction, and it was the duty of the Circuit Judge to dismiss the same as soon as that matter was called to his attention. Act of March 3, 1875, c. 137, § 5, 18 Stat. 472. It is the duty of the court to dismiss such a case upon its own motion as soon as it discovers its want of jurisdiction or the improper or collusive joinder. Williams v. Nottawa, 104 U. S. 209; Hartog v. Memory, 116 U. S. 588. In this case it clearly appeared that there was no controversy between citizens of different States. There was no controversy of any sort. The complainants did not pray the payment of their respective claims. They merely prayed a receivership, coupled with a

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general administration of the assets, which general administration they have refused to enter a decree directing.

There can be no controversy between the parties when the defendant has requested the plaintiff to bring the case.

There can be no matter in dispute when there is no dispute between the parties. The proceeding was not an action at common law; but a bill in equity for the appointment of a receiver. Not having reduced their claims to judgment, they are not entitled to the relief prayed except by defendant's consent. Dawson v. Columbia Trust Co., 197 U. S. 178, 181.

There is a distinction between "matter in dispute" and "matter in demand." Hilton v. Dickinson, 108 U. S. 165, 174; May v. Trust Co., 128 Missouri, 447, 449; Lozano v. Wehmer, 22 Fed. Rep. 755, 757; Gudger v. Western R. Co., 21 Fed. Rep. 81, 84; Keith v. Levi, 2 Fed. Rep. 743, 745.

There was collusion between the parties. Collusion does not necessarily imply fraud, but the derivation of the word implies coöperation or playing together. See Louisville Trust Co. v. Louisville, New Albany & Chicago Ry. Co., 174 U. S. 674, 677, 687, 689; Texas & Pacific Ry. Co. v. Gay, 26 S. W. Rep. 599, 612; S. C., 86 Texas, 571; Balch v. Beach, 95 N. W. Rep. 132, 137. The learned judge who granted these orders was misled by the analogy of certain decisions by the inferior Federal courts upon applications for the appointment of receivers of railway companies engaged in interstate commerce which would be impeded unless receivers were appointed. Such were cases of "property constituting a link in a great continental railway," and manifestly arose under the Constitution and laws of the United States. Mercantile Tr. Co. v. Atlantic & P. R. Co., 70 Fed. Rep. 518, 524; In re Lennon, 166 U. S. 548, 553.

There was not the slightest justification for the extension of the receivership so as to reinclude the assets of the Metropolitan Street Railway Company; nor for the joinder of that company as a party to the suit. All the assets of that corporation, except its causes of action against its lessee, the directors of both companies and the other persons, who had misappro

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Argument for Respondent.

priated and wasted its property, were transferred by the lease to the New York City Railway Company. Those assets were, consequently, already under the protection of the court. The only object of the order extending the receivership over the property of the Metropolitan Street Railway Company was to head off all actions by the state attorney general, the stockholders and creditors of the lessors, that might be brought to compel the lessee and the officers and directors of both parties to the lease to account for the waste of the lessor's property.

In cases where trustees represented conflicting interests, the courts have always been accustomed to allow interventions. Farmers' L. & Tr. Co. v. Nor. Pac. R. Co., 66 Fed. Rep. 169; Farmers' L. & Tr. Co. v. Cape Fear & Y. V. Ry. Co., 71 Fed. Rep. 38; Grand Tr. Ry. Co. v. Central Vt. Ry. Co., 88 Fed. Rep. 622; Fowler v. Jarvis-Conklin M. Tr. Co., 64 Fed. Rep. 279; Hamlin v. Toledo, St. L. & K. C. R. Co., 78 Fed. Rep. 664, 672; Jones on Corporate Bonds, § 338.

Mr. J. Parker Kirlin for the respondent in No. 11, Original: Granting the order allowing the Metropolitan Street Railway Company to intervene in the original suit, for the protection of its own interests, and those of its creditors in its railway lines which were in the custody of the court, under the prior receivership, was a legitimate exercise of judicial discretion.

The jurisdiction of the Circuit Court to entertain the application of the Metropolitan Company for leave to intervene seems plain. It rests on two facts: first, that the subject matter of the controversy was in the actual possession of receivers appointed by the court, Freeman v. Howe, 24 How. 450; Krippendorf v. Hyde, 110 U. S. 276; Gumbel v. Pitkin, 124 U. S. 131; Morgan's Company v. Texas Central Ry., 137 U. S. 171; In re Tyler, 149 U. S. 164; Rouse v. Letcher, 156 U. S. 47; Carey v. Houston & Texas Ry., 161 U. S. 115; White v. Ewing, 159 U. S. 36; Pope v. Louisville &c. Ry., 173 U. S. 573; Porter v. Sabin, 149 U. S. 473, 479; Byers v. McAuley, 149 U. S. 608, 618; Price v. Abbott, 17 Fed. Rep. 506; Armstrong v. Trautman,

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36 Fed. Rep. 275; Compton v. Jesup, 68 Fed. Rep. 263; S. C., 15 C. C. A. 397; Lanning v. Osborne, 79 Fed. Rep. 657, 662; Toledo &c. R. Co. v. Continental Trust Co., 95 Fed. Rep. 497, 505; S. C., 36 C. C. A. 155; Davis v. Martin, 113 Fed. Rep. 6, 9; S. C., 51 C. C. A. 27; and, second, that the administration of the assets of an insolvent corporation is within the functions of a court of equity, and, the parties being before the court, it has power to proceed with such administration. Hollins v. Brierfield Coal Co., 150 U. S. 371, 380; see also Quincy v. Humphreys, 145 U. S. 82, 95.

The right of the court to permit intervention by a party claiming an interest in the property in the hands of a receiver is not affected by the question of citizenship. Compton v. Jesup, 68 Fed. Rep. 263; Continental Trust Co. v. Toledo Ry., 82 Fed. Rep. 642; Toledo, St. Louis & K. C. R. Co. v. Continental Trust Co., 95 Fed. Rep. 497.

The propriety of making lessors of railways parties defendant in a suit, either by a creditor, stockholder or mortgagee, to secure the administration of the assets of an insolvent railway system, where such system includes leased railways, has been repeatedly recognized in the Federal courts. Central Trust Company v. Wabash Railway Company, 29 Fed. Rep. 618; Central Trust Company v. Wabash Railway Company, 34 Fed. Rep. 259, 260, 261; Quincy &c. Ry. Co. v. Humphreys, 145 U. S. 82, 85-89; St. Joseph &c. Railway Company v. Humphreys, 145 U. S. 105, 106; Ames v. Union Pacific Company, 60 Fed. Rep. 966-968; Central Railroad & Banking Company of Georgia v. Farmers' Loan & Trust Company, 79 Fed. Rep. 158-160; Mercantile Trust Company v. St. Louis & San Francisco Ry. Co., 71 Fed. Rep. 601, 602; Mercantile Trust Co. v. Farmers' Loan & Trust Co., 81 Fed. Rep. 254, 255-258.

Mr. James Byrne for the respondent in No. 12, Original: The claim that the decree appointing a receiver is void because made on the application of a simple contract creditor is without merit. While it is true that a court of equity, on