Burlington & Missouri River Railroad v. Martin, No. 6009

No. 6009 | Neb. | Feb 4, 1896

Normal, J.

A suit was instituted in the district court of Adams county by Laura Martin, administratrix of the estate of James Martin, deceased, against the-Burlington & Missouri River Railroad Company in. Nebraska to recover damages for negligently causing the death of her husband. After the petition and answer were filed, by order of the court below, the Chicago, Burlington & Quincy Railroad Company was substituted as party defendant in the cause, instead of the corporation first above named. Upon the trial a verdict was returned in favor of the plaintiff against the substituted defendant for $5,000, which was followed by a judgment for a like sum, to reverse which the Burlington & Missouri River railroad in Nebraska has prosecuted a petition in error, in its own name, to this court. .

The proceedings must be dismissed, since it does not appear from the record that this plaintiff in error is in any manner interested in the controversy, or affected by the judgment sought to be reviewed. .It is disclosed, after the said order of substitution was made, the title of the cause was changed, and all papers thereafter filed therein, and the bill of exceptions, verdict, and judgment were entitled “ Laura Martin, Administratrix, Plaintiff, v. Chicago, Burlington & Quincy R. R. Co., Defendant.” This plaintiff in error was completely dropped out of the case when the order of substitution was entered, appeared no further therein, and no judgment was rendered against it, therefore there is not anything of which it could complain. Certainly it cannot champion the lost cause of another separate and distinct corporation, not before the court, unless a privity of interest is sliown, which is not the case before us so far as we can gather from the record. It is only the parties to a-judgment, or their privies, who can prosecute an appeal or petition in error. (Elliott, Appellate Procedure, secs. 132 et seq., and cases there cited.)

Dismissed.