Teel v. Chesapeake & O. Ry. Co. of Virginia

204 F. 914 | 6th Cir. | 1913

WARRINGTON, Circuit Judge

(after stating the facts as above). The details set out in the statement of facts are deemed necessary because of two questions of jurisdiction that are presented by the record. One relates to this court and the other to the court below. The action upon which issue was ultimately joined in the court below was against both the railway companies; it was a joint action against them as joint tort-feasors.

[1] The defendant Sullivan was eliminated by plaintiff’s election to stand on the first count. It was plaintiff’s right to sue either of the companies alone, but it is settled (at least in the absence, as here, of proof of the fraudulent and collusive joinder alleged and denied) that “a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint” (Southern Railway Co. v. Carson, 194 U. S. 138, 139, 24 Sup. Ct. 609, 610 [48 L. Ed. 907]); and the issue tendered by the petition in the present case was closed in the court below by the joint answer of the companies. The proceedings in error, however, were brought and have been prosecuted against only one of these companies; indeed, as appears in the statement, the absent defendant seems to have been ignored at the trial and ever since. No explanation of this is to be found in the record, nor was the fact mentioned in argument or in the briefs of counsel. It may be that the conveyance of the Chesapeake & Ohio Railway Company of Kentucky, to the company of that name of Virginia, alleged in the pe.fi-lion for removal and pointed out in the statement, was, in spite of the denial contained in the plaintiff's answer, accepted as true at the trial; yet the effect of the instructed verdict was, under the pleadings, quite as distinctly in favor of both railway companies as it was of either. Upon the record, then, we regard the presence of the Chesapeake & Ohio Railway Company of Kentucky as necessary to vest jurisdiction in this court to dispose of the case properly. Knickerbocker Life Ins. Co. v. Pendleton, 115 U. S. 339, 340, 6 Sup. Ct. 74, 29 L. Ed. 432; Estes v. Trabue, 128 U. S. 225, 229, 9 Sup. Ct. 58, 32 L. Ed. 467.

[2] Such defects as this are generally curable by amendment of the writ of error and the issue of a new citation. Since the enactment of the first Judiciary Act of the United States, liberal statutory provisions have been maintained for curing defects of this character where-ever proceedings on error or appeal have been instituted in due time, though defectively, and could be remedied without causing injustice; and numerous illustrations may be found of a tendency in the courts to apply such legislation in the spirit in which it was evidently enacted. See Act of September 24, 1789, c. 20, § 32, 1 Stat. 91, Rev. Stat. §§ 954, 1005 (U. S. Comp. St. 1901, pp. 696, 714); Walton v. Marietta Chair Co., 157 U. S. 344, 346, 15 Sup. Ct. 626, 39 L. Ed. 725; Knickerbocker Life Ins. Co. v. Pendleton, supra; Estes v. Trabue, supra; Thomas v. Green County, 146 Fed. 970, 971, 77 C. C. A. 487 (C. C. A. 6th Cir.), affirmed in 211 U. S. 598, 601, 29 Sup. Ct. 168, 53 L. Ed. 343. In Gilbert v. Hopkins, 198 Fed. 849, 117 C. C. A. 491 (C. C. A. 4th Cir.), a writ of error seasonably sued out was permitted to be amended by inserting the name of an omitted party, although the time fixed for suing out such a writ had then expired, and the new party was required to be brought in by a new citation.

The time for allowing a new writ of error has likewise expired in the instant case; but in view of the statutory provisions before alluded to, and of section 11 of the Court of Appeals Act (Act March 3, 1891, c. 517, 26 Stat. 829 [U. S. Comp. St. 1901, p. 552]), we are disposed to enter a rule on the plaintiff in error to show cause, within ten days after the order is entered, why the Chesapeake & Ohio Railway Company of Kentucky should not be made a party defendant to her proceeding in error, and for defendant in error so to show cause why the writ of error should not be permitted to' be amended by inserting the name of that company and a new citation to be issued to it. Meanwhile, the case will be held for further order.

We cannot pass upon the other jurisdictional question, if we can at all, until the matters involved in the rule to show cause are determined.