Briefly stated, the facts are as follows: Under the act of congress of July 2,1864, and other acts amendatory and supplemental thereto, the Northern Pacific Railroad Company became entitled to certain lands along the line of its railway, and the St. Paul & Pacific Railway Company became entitled to certain lands under the act of congress of March 3, 1857, and the acts amendatory and supplemental thereto. For the purpose of settling the rights of the respective companies in and to certain lands which are within the limits of both the grants above named, the Northern Pacific Company, by its bill in equity duly filed in the circuit court for the district of Minnesota, asserted its right to the lands in dispute against the said St. Paul & Pacific Company. Before this suit came to a hearing, the St. Paul, Minneapolis & Manitoba Company became a party thereto, having succeeded to all the rights of the St. Paul & Pacific Company.

The lands in dispute in that cause were divided into three classes, towit, those within the place or 20-mile limit of the line of the Northern Pacific Company; those within the indemnity limits of the grants to the Northern Pacific, and included within the terms of a withdrawal of lands by order of the United States land department, under date of October 12, 1870; those within the indemnity limits of the grants to the Northern Pacific, but which were not within the terms of the withdrawal order above named. Pending this litigation, and on or about June 13, 1878, by stipulation between the parties, the court appointed Edward Sawyer a special commissioner, with authority to sell the lands in dispute, or so much thereof as might be sold under the order of the court, the proceeds of sale, whether money, the evidence of money, or other securities, with the interest collected thereon, to be held subject to the final decree of the court, which was to operate thereon as if the same were the lands from the sales whereof they were realized. The commissioner accepted this trust, giving security for the performance of his duty in all particulars. On the 24th day of December, 1886, the cause went to decree in the circuit court, it being held that the Northern Pacific Company was entitled to the lands that came within the first and second classes herein before described, and that as to the lands within the third class the bill should be dismissed, "without prejudice to the right of said plaintiff, its successors or assigns, to institute and prosecute such other and further proceedings, either at law or equity, as to it or them may seem necessary or proper for establishing its or their rights and title, if any, to said lands not so awarded to said plaintiff." The cause was carried by appeal to the supreme court of the United States, and the decree rendered was aífirmed. St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, Sup. Ct. Rep. 389.

11

On the 23d day of June, 1891, the Northern Pacific Company filed the bill in the present cause, for the purpose of finally settling the rights of the parties to the lands falling within the third division of the classifi cation herein before given, and in regard to which no final adjudication was made in the decree of December 24, 1886. It is stated in the bill that Edward Sawyer has in his charge, and subject to the orders of the

court, a large amount of money and securities realized from sales made by him of the lands included within class 3, and a preliminary injunction was prayed for the purpose of restraining said Sawyer, who was made a defendant to the bill, and the St. Paul, Minneapolis & Manitoba Railway Company, from paying over or receiving any of the money or securities derived from a sale of the lands to which the rights of the respective companies were yet unsettled, until by the final decree in this cause it should be determined to which company the lands, and the proceeds representing the lands sold, in fact belonged. Notice of the application for the temporary injunction having been duly given to the defendants, the same was heard, and the court granted the order asked, embracing therein a provision appointing Edward Sawyer a receiver to hold the securities until the further order of this court.

By the present appeal it is sought to reverse the order thus made. From the record submitted to us, the following facts are clearly apparent: The title to the lands falling within the third class, named in the decree of December 24, 1886, is in dispute between the Northern Pacific and St. Paul, Minneapolis & Manitoba Companies, and cannot be finally settled until after a full hearing upon the issues presented by the bill herein filed. The money and securities in the hands of the defendant Sawyer were derived from sales of portions of these lands, under an agreement between the contesting railroad companies that the same should stand for and represent the lands by the sale of which they were realized, and to be paid over to the company ultimately decreed to be the owner thereof. It is the purpose of the present bill to obtain such final decree; the former proceedings between the parties having failed to accomplish that purpose.

The circuit court held that, under the circumstances thus made clear, the interests of all would be advanced by continuing the control of the money and securities realized from the lands where the parties, by their own agreement, had previously placed the same, and to that end granted the injunction restraining the defendant Sawyer from paying over the money or securities until it was finally determined to whom the same belonged; and for the purpose of further protecting the fund for the common benefit of the litigants, the court included in the order the provision appointing Edward Sawyer a receiver of the property, with the requirement that he give bond for the faithful performance of his duties.

We fail to see that exception can be justly taken to the action of the circuit court in granting the order appealed from. On the contrary, we are of the opinion that, upon the facts disclosed in the record, it was the duty of the court below to grant the injunction asked for.

Counsel for appellant has discussed at length the ultimate question necessary to be decided upon the final hearing, to-wit, to which company do the lands belong, which question includes the construction to be placed upon the several acts of congress under which the parties claim, and the effect to be given to the action of the land department, and other like matters. It cannot be expected that upon a hearing of an application for a temporary injunction either the circuit court, or this court

upon appeal, will enter upon a full hearing of the questions upon which the ultimate rights of the opposing parties may be dependent. If it appears from the showing made that the title to the land or property is in dispute, and that the complainant is in good faith seeking to settle such dispute, that is as far as it is necessary for the court to inquire, so far as that particular point is involved, when asked to issue an injunction. such as the one issued in the present proceeding; and therefore we do not enter upon a consideration of the questions which were so fully presented in argument of counsel, but which more properly belong to the final hearing of the cause upon the merits.

Finding no error in the order appealed from, the appeal is dismissed at cost of appellant.

COURTNEY et al. v. PRESIDENT, ETC., OF INSURANCE CO. OF NORTH AMERICA et al.

(Circuit Court of Appeals, Eighth Circuit. February 1, 1892.)

1. CIRCUIT COURT OF APPEALS-JURISDICTION.

On a bill to foreclose a mortgage, a decree of sale was rendered in the circuit court before the creation of the circuit court of appeals. After the creation of that court a decree was entered on a cross-bill setting up a mechanic's lien on the premises. Held, that an appeal to the circuit court of appeals would lie from the latter decree, though not from the former.

2. SAME AMOUNT IN Controversy.

When the circuit court obtains jurisdiction of a suit to foreclose a mortgage involving more than $2,000 by reason of diverse citizenship, it has jurisdiction to determine the priority of all liens upon the premises set up by cross-bill, regardless of the amounts claimed; and, as the jurisdiction of the circuit court of appeals is not limited to any amount, it may entertain an appeal from a decree of the circuit court on such a cross-bill, refusing to recognize a lien for less than $2,000. & MECHANICS' LIENS-WHEN ATTACHES.

Comp. St. Neb. c. 54, § 3, provides that on filing the proper account for a mechanic's lien the same shall operate as a lien "for two years from the commencement of the labor or the furnishing such materials." Held, that the word "commencement" qualifies both "labor" and "furnishing," and the material-man's lien dates from the time of the first delivery.

4 SAME-ACCOUNT AND AFFIDAVIT.

As against the owner of the building, as well as a mortgagee thereof who received his mortgage before the end of the four months allowed for filing the account, the material-man's lien attaches from the date of the first delivery, although the account and affidavit do not show such date, and only contain the date when the money became due, which was after the last delivery of material.

Appeal from the Circuit Court of the United States for the District of Nebraska. Reversed.

Carroll S. Montgomery, Eugene Montgomery, and Montgomery, Charlton & Hall, for appellants.

John C. Wharton and William Baird, for appellees.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges.

SHIRAS, District Judge. On the 25th of November, 1889, the appellees filed a bill in equity in the circuit court for the district of Ne

braska, for the purpose of foreclosing a mortgage executed by Minnie L. and Fremont N. Jaynes upon certain realty situated in the city of Omaha, Neb., and given to secure the payment of the note described in the mortgage, the note and mortgage being dated October 9, 1888. To this bill, in addition to the mortgagors, there were made defendants a number of parties holding liens upon the realty, including the firm of Courtney & McBride. The latter answered the bill, and also in due season filed a cross-bill, in which it was averred that on the 12th day of September, 1888, a contract was entered into between said firm and Minnie L. Jaynes, who was the owner of the realty subsequently mortgaged, whereby the firm agreed to furnish certain brick to be used in the erection of a building upon the realty; that in pursuance of such contract the said firm, beginning on the 12th day of September, 1888, delivered 284,000 brick between that date and the 21st of November following, which were used in the construction of a building upon the premises described in the mortgage; that on the 19th day of March, 1889, the said firm filed in the office of the register of deeds in and for Douglas county, Neb., a claim for a mechanic's lien in accordance with the provisions of the statute of the state of Nebraska, the sum claimed as a lien being $901.25; that this sum and interest remained due and unpaid; and that the lien thus created was prior and superior to the lien of the mortgage. Answering the cross-bill, the mortgagees admitted all the averments thereof except that in which priority of lien was claimed. Upon the hearing the circuit court found and adjudged that the mortgage was a valid lien upon the realty, and adjudged that there was due complainants thereon the sum of $17,563.25; that there was due the firm of Courtney & McBride the sum of $986.05, which amount was a valid lien upon the realty; but that the same dated from November 26, 1888, and was therefore subject to the lien of the mortgage. The premises were sold by a master, and the amount realized was not sufficient to pay all the liens, and as a consequence Courtney & McBride have received nothing upon their claim. When the decree establishing the order and priority of the several liens was entered, it was duly excepted to, and the said Courtney & McBride forthwith perfected their appeal to this court, assigning as the principal error relied upon, the holding that the lien of appellants dated only from November 26, 1888, and was therefore inferior to the lien of the mortgage. In this court the appellee filed a motion to dismiss the appeal for want of jurisdiction, which motion, by agreement of counsel, was submitted with the main case. In support of the motion, it is suggested that, as the first argument and submission of the case was had, and the decree of the court ordering a sale of the premises was entered, on the 17th day of June, 1890, before the adoption of the act creating this court, jurisdiction to entertain the appeal does not exist. If the appeal was from that decree, the position would be well taken, but such is not the fact. The order or decree appealed from is based upon the cross-bill filed by appellants, and it was rendered July 27, 1891, at which time the act creating this court was in full force, and the right to an appeal beyond

question. Equally ill-founded is the objection to the jurisdiction based upon the fact that the amount due the appellants is less than $2,000, the contention being that no appeal or writ of error will lie to this court unless the matter in dispute exceeds $2,000. The argument is that, as the statute of August 13, 1888, requires that sum to be involved before the circuit court can take jurisdiction originally of a cause, it must be held that the same limitation is applicable to the jurisdiction of this court. No such limitation is found in the act creating this court, and defining the jurisdiction thereof. It may be said, generally, that it is the purpose of the act of March 3, 1891, creating this court, to provide in all civil causes an appeal to an appellate court, the appellate jurisdiction being divided between the supreme court and the circuit courts of appeal, according to the nature of the questions involved. Therefore, if it be true that the circuit court had jurisdiction of the issues presented by the cross-bill and the answer thereto, this court has jurisdiction to review the decree settling such issues. There is and can be no question raised as to the jurisdiction of the circuit court over the bill filed to foreclose the mortgage held by the complainant company, that company being a corporation created under the laws of the state of Pennsylvania, the defendants to the bill being citizens of Nebraska, the amount claimed being largely in excess of $2,000, and the property included in the mortgage being situated in Nebraska, and therefore within the district wherein the suit was brought. Having full and complete jurisdiction of the parties to the suit and of the property involved therein, the court had the right to hear and determine all questions necessary to be settled in order to enter a proper decree of foreclosure, to secure an advantageous sale of the property, and to distribute the proceeds of the sale. It had the right to entertain all cross-bills filed by any one or more of the defendants for the purpose of establishing any liens held by them upon the mortgaged property, the jurisdiction over the same not being dependent upon the citizenship of the adverse parties thereto, nor upon the amount in dispute therein, but being sustained by the jurisdiction over the original proceedings for the foreclosure of the mortgage. The motion to dismiss the appeal is therefore overruled, and we pass to the consideration of the question of the priority of the mortgage over the lien of the appellants. This will require, in the first instance, an examination of the sections of the Nebraska statute creating liens in favor of parties furnishing materials to be used in the erection of buildings. Sections 1, 3, c. 54, Comp. St. Neb. p. 123, read as follows:

"Section 1. Any person who shall perform any labor for, or furnish any material or machinery or fixtures for, the erection, reparation, or removal of any bouse, mill, manufactory, or building or appurtenance, by virtue of a contract, express or implied, with the owner thereof or his agents, shall have a lien to secure the payment of the same upon such house, mill, manufactory, building, or appurtenance, and the lot of land upon which the same shall stand. 99

"Sec. 3. Any person entitled to a lien under this chapter shall make an account in writing of the items of labor, skill, machinery, or material furnished,