87 Mo. App. 26 | Mo. Ct. App. | 1901
In August, 1899, the appellant suffered a loss of growing timber, cord-wood, poles and grass from a fire set out by sparks from a locomotive running on the track of the respondent’s railroad in Clark county. The railroad property was, at the time the fire occurred, in the hands of receivers appointed by the circuit court of the United States for the western division of the western district of Missouri in a proceeding instituted against the company by the Union Trust Company of New York, trustee. The receivers qualified in Eebruary, 1894. The record contains no proof as to when they were discharged, but there is an allegation in the answer that in January, 1896, the property was sold under a foreclosure decree in said proceeding and purchased by the defendant. The original petition made the Atchison, Topeka & Santa Fe Bailroad, Aldace Walker, John McCook and Joseph Wilson, receivers, defendants. The amended petition on which the case went to trial, was against the Atchison, Topeka & Santa Fe Bailroad, a corporation, the receivers being omitted. At
The point is made that it was error to admit in evidence the copy of the order of the Eederal court appointing the receivers and, of their bonds, because they were not attested by the certificate of the judge of that court as well as the clerk. The only objection made to the admission of those documents at the trial was the general one that they were incompetent, irrelevant and immaterial. This was insufficient. The imperfection for which the competency of documentary evidence is challenged must be specifically pointed out. Clark v. Conway, 23 Mo. 438; Buckley v. Knapp, 48 Mo. 152; Alder v. Lange, 21 Mo. App. 516; Bates v. Scheik, 47 Mo. App. 642; Clark v. Loan Co., 46 Mo. App. 248.
The point must be ruled against the appellant.
Neither did the court err in, instructing the jury to return a verdict for the defendant. The railroad was being operated by the receivers when the fire happened, and that. a railway company or other corporation can not be made to respond in damages for obligations or liabilities arising out of the control or operation of its property while in the possession of a receiver, is settled law in this State. Heath v. M. K. & T. Ry. Co., 83 Mo. 617; Turner v. Railway Co., 74 Mo. 602; Farrell v. Union Trust Co., 77 Mo. 477. The injury complained of did not result from the acts of the respondent but of the officers of the Eederal court or their agents and servants who were managing the road. The cases cited from other jurisdictions fail to support the position of the appellant. So far as we have examined them they recognize the rule above stated, and where the defendant is held liable it is either because of a statute on the subject or a positive order of the court in which the receivership proceedings were pending that the