Dougherty v. Payne, No. 4036

No. 4036 | 5th Cir. | Mar 23, 1923

PER CURIAM.

April 6, 1920, plaintiffs in error, brought suit for malicious prosecution against Walker B. Hines, as Director General of Railroads. Hines having resigned as Director General, his successor, John Barton Payne, was substituted as defendant. A demurrer to the declaration having been sustained, on May 18, 1922, a judgment final thereon was entered.

March 26, 1921, James C. Davis succeeded Payne as Director General of Railroads and as Agent, by virtue of the President’s proclamation, as authorized by section 206 (a) of the Transportation Act^ of 1920 (41 Stat. 456). But no motion has been made by the plaintiffs in error to substitute Davis, in his capacity of Director General of Railroads, as defendant, and no such substitution has been. made. Upon that ground, and in reliance upon the Act of Congress of February 8, 1899, 30 Stat. 822 (Comp. St. § 1594) on February 23, 1923, the defendant in error filed a motion to dismiss the writ of error herein.

The Act of March 3, 1923, entitled "An act to amend Section 206 of the Transportation Act, 1920,” provides, among other things, that suits such as this is shall not abate by reason of the resignation of the Director General of Railroads, but may be prosecuted to final judgment by substituting the agent then in office under designation by the President, and that, upon proper motion within one year from the date of the act, suits which have been abated or dismissed in pursuance of the act of 1899 shall be reinstated.

The motion to dismiss the writ of error is therefore denied.