57 F. 993 | U.S. Circuit Court for the District of Indiana | 1893
Tbe plaintiff brings this suit as a bondholder for whom the trustee has refused to bring suit against the Columbus, Chicago & Indiana Central Railway Company, Archibald Parkhurst, trustee, and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, for the foreclosure of a trust deed or mortgage executed by tbe Columbus, Chicago & Indiana Central Railway Company to Archibald Parkhurst, as trastee, to secure 1,000 bonds, of $1,000 each, issued by it, and asking for the sale of its railroad embraced in said trust deed, extending from Indianapolis, Ind., to Columbus, Ohio, together with its franchises, equipments, property, tolls, and interests, — that is to say, the lands, tenements, hereditaments, fixtures, goods, and chjattels of the Columbus, Chicago & Indiana Central Railway Company; its property, rights, privileges, interest, and estate of every description and nature; its rails, ties, fences, buildings, and erections; its right of way, cars, engines, tools, and machinery; its rents, reservations, and .reversions, of every nature, or so much thereof as lies and is within the state and district of Indiana. The hill avers that the Pittsburgh, Cincinnati, Chicago & Ht. Louis Railway Company claims some interest in the said premises, and prays that it may be required to make answer to, all and singular, the allegations and charges contained in the bill, and that said property may be decreed to be sold free and discharged from any and all claims or interest of the parties respondent to the bill.
The plaintiff contends that the plea is insufficient because it; contains no averment that either the mortgagor, the Columbus, Chicago & Indiana Central Railway Company, or the mort- j gagee, Archibald Parkhurst, trustee, was brought within the jurisdiction of the court in Ohio by process personally served, or by appearance in person or by attorney. The plea avers that the said Charles R. Lynde filed his bill of complaint, denominated by the law of the state of Ohio a “petition,” against this defendant and its codefendants the Columbus, Chicago & Indiana Central! Railway Company and Archibald Parkhurst, trustee, and it then! proceeds to aver that the cause was heard, and a decree rendered, against all the defendants; but it fails to show affirmatively that; the court acquired jurisdiction of the persons of the defendants, either by service of process or by appearance. :
Pleas in bar, in suits in equity, are not favorities of the law,' because the defendant has other and ample modes of .defense open to him. They are therefore required to be drawn with precision, and must disclose upon their face a complete defense. The facts necessary to render the plea an equitable bar to the case made by the bill 'must be clearly and distinctly averred, and such plea will not be aided by argument, inference, or intendment. McCloskey v. Barr, 38 Fed. Rep. 165. This rule, however, is not to be construed as conflicting with that other salutary rule that legal presumptions Ought not to be stated in a pleading. Steph. Pl. (1871) p. 312 et seq. When the facts are stated from which the law raises a certain legal presumption, it is not necessary for. the pleader to do more, in order to have the benefit of such legal presumption. In the case of Galpin v. Page, 18 Wall. 350, the rule is thus stated:
“It is undoubtedly true tbat a superior court of general jurisdiction, proceeding -within the general scope of its powers, is presumed to- act rightly. All intendments of law, in such cases, are in favor of its acts. It is pi'e*995 sumod 1o have jurisdiction to give the judgment it rendered, until tlie contrary appears; and this presumption embraces jurisdiction, not only of the cause or subject-matter of the action in which the judgment is given, but of tiie parties, also. The former will generally appear from the character of the judgment, and will be determined by the law creating- the court, or prescribing its general powers. The latter should regularly appear by evidence in the record of service of process upon the defendant, or ids appearance in the action. But. when the former exists the latter will be presumed. This is familiar law, and it is asserted in all the adjudged cases. The rule is different with respect to courts of special and limited authority. As to them, there is no presumption of law in favor of their jurisdiction. That must affirmatively appear by sufficient evidence or proper averment in the record, or their judgments will he deemed void on their face.”
Thu judgment in question was rendered by a court having general jurisdiction in law and equity, and the legal presumption is that the court, had jurisdiction of the parties and subject-matter, and had power to pronounce the judgment it did; and this presumption cannot he overcome, except by averment and proof that ic proceeded without jurisdiction. It is tine that, when the record of a former judgment is set up as establishing some collateral fact involved in a subsequent litigation, it must be pleaded strictly as an estoppel; and ¡he rule is that such pleading must he framed with ills' utmost precision, and it cannot foe aided by inference or intendment.. When, however, a former judgment or decree is set up in bar of a subsequent action, or as having determined the entire merits of the controversy, it is not required to he pleaded wüh any greater strictness than any other plea in bar, or any plea, in avoidance, of the matters set np in the antecedent pleading of the opposite par tv. Aurora City v. West, 7 Wall. 82; Gray v. Pingry, 17 Vt. 419; Perkins v. Walker, 19 Vt. 144; 1 Greenl. Ev. (12th Ed.) p. 566; Shelley v. Wright, Willes, 9. The plea is not bad for failing to aver that the court, had acquired jurisdiction over the parties by service of process or appearance. If, in truth, the court .proceeded to render the decree in question without having acquired jurisdiction of the defendants, that fact, to avail ihe plaintiff here, should have been set. u|> by replication, insi ea cl of setting the plea, down for argument. Rogers v. Odell, 39 N. H. 452; Spaulding v. Baldwin, 31 Ind. 376; Biddle v. Wilkins, 1 Pet. 686; Pennington v. Gibson, 16 How. 65; Campe v. Lassen, 67 Cal. 139, 7 Pac,. Rep. 430; Vanfleet, Goliat. Attack, §§ 846 and 847, and authorities there cited.
It follows that the sufficiency of the plea must he determined on tin' assumption that the court in Ohio had jurisdiction of the defendants when ihe cause before it was heard and decided. The cause of action there was founded on the same bonds and mortgage or trust deed which constitute the cause of action here. The mortgage or trust deed in suit -was executed by a railroad corporation organized by the consolidation of two corporations, one of which was organized un(ler the laws of the state of Ohio, and the other under the hews of the state of Indiana,. The consolidated company, presumably, became invested with all the property a.nd franchises of the constituent corporations. Its franchise to he a consolidated corpora (ion, and to build, own, and operate a line of railway extend
It is elementary that no sovereignty can extend its process beyond its own territorial limits, to subject persons or property to its judicial decisions. Every attempted exertion of authority of this sort beyond its limits is a mere nullity, incapable of binding such person or property in any other forum. Story, Confl. LaAvs, (7th Ed.) § 539. A suit cannot be maintained against a person so as absolutely to bind his property situated in another sovereignty, nor so as absolutely to bind his right and title to immovable property whose
It results from these views that the plea is insufficient, and it is ¡ so ordered, with leave to the defendant to answer within 30 days.