8 N.M. 159 | N.M. | 1895
The appellee intervener, James H. Madden, filed his suit in trespass on the case in August, 1888, in the district court for Bernalillo county, against the New Mexico & Southern Pacific Railroad Company and the Atchison, Topeka & Santa Fe Railroad Company, for damages on account of personal injuries received by the plaintiff through the negligence of their servants, agents, and employees in running and operating the cars of defendant companies. Issue was joined on separate pleas of the general issue by each, and the case was tried by a jury, and a verdict returned in favor of plaintiff for $3,000, against the. defendant companies, in December, 1891. Thereafter the defendant companies jointly moved for judgment in their favor on the special findings, which was denied; and in November, 1892, defendants jointly moved to aside the verdict, and for a new trial, which was also denied, and judgment was thereupon entered in favor of the plaintiff. March 23, 1893, the defendant the Atchison, Topeka & Santa Fe Railroad Company, sued out its separate writ of error, and the case was docketed in this court as number 534. April 23, 1893, the defendant the New Mexico & Southern Pacific Railroad Company sued out its separate writ of error, and that case was docketed in this court as number 536; and it gave a supersedeas bond to stay execution. Both cases were returnable to the July, 1893, term of the supreme court. On August 3, 1893, the writ of error sued out by the Atchison, Topeka & Santa Fe Railroad Company (No. 534) was, on motion of appellee, not resisted by appellant, dismissed; and thereafter, at the same term of this court, the case of New Mexico & Southerh Pacific Railroad Company (No. 536) was reversed and remanded, with directions to the court below to dismiss the case as to that defendant company, which was done; but this court expressly refused to set aside and vacate the judgment against the Atchison, Topeka & Santa Fe Railroad Company, or to take any action in that part of the case. Upon receipt of the mandate to the lower court on the case reversed, plaintiff, Madden, moved for judgment against the Atchison, Topeka & Santa Fe Railroad Company, and pending that motion the venue of that case was changed to Santa Fe county. On December 23, 1893, the United States circuit court for the district of Kansas (Judge Caldwell presiding), on the .application of the Union Trust Company of New York in a suit for mortgage foreclosure proceeding against the Atchison, Topeka & Santa Fe Railroad Company, appointed three receivers, who thereupon took charge of all the property of defendant corporation.- On January 26, 1894, in the district court at Santa Fe (Judge Seeds presiding), as auxiliary to the original foreclosure suit before Judge Caldwell, the same three gentlemen were appointed receivers for said defendant corporation, and all its property in New Mexico. On June 15, 1894, plaintiff, Madden, as intervener in the foreclosure proceedings, filed a petition in the district court at Santa Fe for an order on the receivers to pay the amount of his judgment, which was by the court granted; and, the receivers declining to pay the same, the Union Trust Company of New York brought the ease here by appeal, but neither the Atchison, Topeka & Santa Fe Railroad Company nor the receivers appealed.