86 F. 1 | 5th Cir. | 1898
Lead Opinion
after stating the facts as above, delivered the opinion of the court.
The cause comes here on 10 assignments of error. The sixth, seventh, and eighth object in part to the refusal of the court below to take the case from the jury and direct a verdict for the defendants “because there was no evidence that any defect in the roadbed had aught to do with bringing about the accident, but on the contrary the same was shown to have been caused by a drawhead pulling out, which was a matter of pure accident.” The other questions raised by the assignments are: First, the jurisdiction of the federal court; second, the statute of limitations; and, third, the absence of allegation or proof of betterments by the plaintiff to the road while in the hands of the receivers.
On inspection of the record, we find considerable testimony as to the bad condition of the road at the place where the accident occurred. In addition to the testimony of the plaintiff, the depositions of Baker, Guy, and Oarriker were read in evidence, and Weaner, who had been foreman of the section, was examined; and they all testified the track was in bad condition at the time of the accident. There was also testimony offered as to the accident being caused by the drawhead. We think the court very properly submitted this testimony all to the jury under the charge given, and there-was no error in so doing.
The question of the jurisdiction of the court is the most important in this case. It is vigorously contended by the plaintiffs in error that, because the defendant the Missouri, Kansas & Texas Bailwáy Company of Texas is a citizen of the same state with the plaintiff, the federal court has no jurisdiction in the cause. There can be no doubt that, at the time the suit .was removed from the state to the federal court by the receivers, it was properly removed, and that the jurisdiction of the federal court attached, both on account of diverse citizenship and the federal question involved; but plaintiffs in error contend that, because the ownership of the property subsequently passed from the hands of a citizen of another state to those of a citizen of the same state with the plaintiff, therefore the jurisdiction was lost by the federal court, and the cause should be remanded to the state court. ‘ This does not seem to be a new question, and the reported cases do not support the contention. In Clarke v. Mathewson, 12 Pet. 164, Story, J., speaking for the court, says:
“The parties to the original bill were citizens of different states, and the jurisdiction of the court completely attached to the controversy. Having so attached, it could not be devested by any subsequent events, and the court had a rightful authority to proceed to a final determination of it. If, after the commencement of the suit, the original plaintiff had removed into, and become a citizen of, Ehode Island, the jurisdiction over the cause would not have been devested by such change of domicile;” citing Morgan’s Heirs v. Morgan, 2 Wheat. 290; Molían v. Torrence, 9 Wheat. 537; and Dunn v. Clarke, 8 Pet. 1.
The same doctrine is announced by Matthews, J., in Stewart v. Dunham, 115 U. S. 61, 5 Sup. Ct. 1163, and later by Foster, J., in
“It a change of domicile, making both parties citizens of the same state, would not devest jurisdiction, it is useless to argue that a transfer of the subject of litigation, producing the same result, would affect the jurisdiction.”
This would seem to be so well settled a doctrine that citation of authorities is not required to maintain it.
In addition to the question of citizenship, plaintiffs in error contend that the order of the federal court discharging Cross and Eddy, as receivers, in the Northern district of Texas, defeated the right of the defendant in error to recover in a suit at law in the Eastern district of Texas, because intervention had not been filed ■by the plaintiff below in the suit in the Northern district of Texas within the time prescribed. Plaintiff below at no time sought his remedy by intervention, but was content to rely upon his right to sue in an action at law. He never submitted Ms claim to the federal court for the Northern district, and was in no way bound by the order thereof. When he brought suit against the receivers, Cross and Eddy, as he did, and they moved the cause from the state to the federal court on the grounds of diverse citizenship, jurisdiction of that court attached, and no orders of a court in another district in any way affected it; and we have seen above that because ■ the property changed owners after suit brought in no way affected (he jurisdiction. But, if this were not so, the sixth paragraph of said order, brought up in the bill of exceptions, sufficiently defines the purpose and action of (he court at the time it was made:
“(6) That nothing in this decree contained is intended to affect, or shall be construed as affecting, the status of any pending or undetermined litigation in which said receivers appear as parties. Such litigations may confirme to determination in the name of the receivers, hut for the use of the Missouri, Kansas & Texas Railway Company, and at its costs and expense, and with the right to that company, should it be so advised, to appear and be substituted in any such litigation.”
The Missouri, Kansas & Texas Railway Company of Texas was organized under the act of legislature of that state of April 2, 1891, and it purchased the property of the Missouri, Kansas & Texas Railway Company under the same act, and that of April 16, 1891; the latter providing, as we have seen, that the purchaser shall take the property subject to all suits and claims for damages against the receivers of the Missouri, Kansas & Texas Kailway Company, and the purchasing company shall take the same charged therewith, and subject to the payment thereof. And it further provides that the assumption by such purchasing company of such liabilities may enter into, and constitute a part of, the consideration for such sale and conveyance. Of all of which the Missouri, Kansas & Texas Railway Company of Texas had full notice at the time of purchase; and there can be no doubt that it took the property as the act prescribed, with the liability to pay all such claims as the appellee here presents, as a part of the consideration thereof. We do not see, under the facts of this case, bow any question of betterments can arise. Plaintiff below, as we have shown, is not claiming inter
The mistake the plaintiff in error makes in reference to the remaining question of error raised is in his definition of a cause of action. He cites from Sayles’ Rev. Civ. St. § 3202, as follows:
“There shall be commenced, and prosecuted within one year after the cause of action shall have accrued, and not afterwards, all actions or suits in court, of the following description: (1) Actions for injuries done to the person of another.”
The cause of action in this case was the injury done to the person of - the plaintiff below by the negligence of the defendant below. This action was brought within a year from the time the injury occurred, and it is not barred by the statute of limitations. The assignment of additional specifications of negligence on the part of defendant in the subsequent amended petition of plaintiff to that first set up does not create a new cause of action. This holding is sustained by the case of Smith v. Railway Co., 12 U. S. App. 426, 5 C. C. A. 557, and 56 Fed. 458, by Thayer, J., in which he cites several cases substantiating the same doctrine.
Although Cross and Eddy were discharged in the court below, they seem to be dissatisfied with this, and come here on appeal. For what purpose, and on what ground, they would seek to be held for this accident, it is difficult to determine from the record. On the whole record, we do not find any of the assignments of error well taken, and therefore hold the judgment of the court below should be affirmed.
Dissenting Opinion
(dissenting). I am compelled to dissent from the opinion and judgment of the court, on the following grounds:
1. The action below was one at law. The court was without jurisdiction to bring into the case, and make a party defendant, a citizen of the same state as the plaintiff, on the ground that the newly-made defendant assumed the obligation of paying the plaintiff’s demands because it had acquired property in the possession of the original defendants, upon which property the plaintiff could not claim, nor the court below enforce, a lien.
2. Even if the court below had jurisdiction of the parties, and could be supposed in an action at law to have equitable jurisdiction under the peculiar circumstances, still the defendant in error was entitled to no judgment or decree against the Missouri, Kansas & Texas Railway of Texas without allegation and proof of better-ments made by the defendant receivers on the Missouri, Kansas & Texas Railway while the same was in custodia legis. On this point the decision of the supreme court of the state of Texas in Railway Co. v. McFadden, 33 S. W. 853, appears to be conclusive.
3. The opinion in the instant case appears to be based on the proposition that the United States circuit court of the Eastern dis
