8 F.2d 907 | D.C. Cir. | 1925
The appellant filed a petition in tho lower court for a writ of mandamus to compel the appellee, as Director General of Railroads and Agent of the President, to pay a certain judgment which appellant claimed to have recovered against him. The respondent filed a general demurrer to the petition. This was sustained, the petition was dismissed, and tho present' appeal was taken.
The issue in the case is governed by the Transportation Act approved February 28, 1920. 41 Stat. 456. Congress thereby provided for the termination of federal control of railroads on March 1, 1920, with the provision that actions at law based on causes of action arising out of the federal operation of any railroad, of such character as prior to federal control could have been brought against the carrier, could after the termination of federal control bo brought against an Agent to be designated by the President for such purpose; the actions to be brought in any court which, but for federal control, would have had jurisdiction of the cause of action, had it arisen against the carrier, and such actions to be brought not later than two years after the passage of the act. It provided, furthermore, that all final judgments in such actions rendered against the Agent designated by the President should be promptly paid out of a revolving fund created by the act.
On March 11, 1920, the President appointed Walker D. Hines, then Director Gen
On May 19, 1920, the day next after the retirement of Mr. Hines as aforesaid, the relator, Helen Rauch, commenced an action in the Supreme Court of New York County, State of New York, naming the defendant therein as “Walker D. Hines, Director General, Hudson & Manhattan Railway Company,” seeking damages for personal injuries suffered by her because of the negligence of certain employees of said railway company while she was a passenger upon its ears at a time when it was under federal control. Summons was issued directed to “Walker D. Hines, Director General, Hudson & Manhattan Railway Co.,” and was served by copy left with an officer of that company. On June 9,1920, an answer was filed in the name of the defendant, taking issue with the allegations of the petition. The ease was regularly noted for trial, and on October 5, 1922, a trial was had, the defendant not appearing, resulting in a verdict and judgment in the sum of $2,132.20 for the plaintiff.
Afterwards, to wit, on December 17, 1923, being a day more than two years subsequent to the passage of the Transportation Act, the relator, Helen Rauch, filed a motion in the same case, reciting the foregoing facts and praying for an order “amending the name of the defendant upon the summons, complaint, and all other papers in this action, including the judgment roll, so that the same will read, “James C. Davis, Director General of Railroads (Hudson & Manhattan Railway Co.) and Agent of the President.” The court on February 1, 1924, granted this motion over the objection of said James C. Davis, and ordered that the title of the action should be amended and changed accordingly, and that the judgment rendered on October 5, 1922, against Walker D. Hines, Director General, Hudson & Manhattan Railway Co., should be amended so that the name of the defendant in the judgment should read “James C. Davis, Director General of Railroads (Hudson & Manhattan Railway Co.) and Agent of the President, Defendant.” The judgment as thus amended was refused payment by the appellee, whereupon the appellant brought the proceeding in mandamus, which is now before us upon appeal.-
We are of the opinion that the judgment entered on October 5, 1922, in the Supreme Court of New York County, against “Walker D. Hines, Director General, Hudson & Manhattan Railway Co.,” was void, since he was sued only as Director General, and not as Agent designated by the President, these being distinct and separate offices, and since in fact he did not hold either office when the summons was served, nor at any time during the pendency of the action. It is true that service of the summons was attempted to be made by copy left with a person who at the time was entitled to accept service for John Barton Payne, the successor of Mr. Hines, had he been named as defendant; but that fact is immaterial, since •Mr. Payne was not named as defendant, nor was any judgment sought or entered against him.
It is suggested that the manifest purpose of the action was to procure a judgment which should be enforceable against the funds of the Railroad Administration, that the individual name of the Agent to be sued was of no real consequence, and that the aforesaid misnomer should be disregarded. This suggestion is answered by the fact that the act provides that after the termination of federal control actions of this character may be brought only against the Agent designated by the President for that purpose. The act also provides that a ease properly commenced against the Director General, and pending against him at the termination of federal control, shall not abate by reason of such termination, but may be prosecuted to final judgment, after the substitution of the Agent designated by the President under the act. In each instance the Agent, not his official title alone, must be named as defendant. Tutsch v. Director General of Railroads, 52 Cal. App. 650, 199 P. 861; Davis, Director General of Railroads, v. Griffith, 103 Okl. 137, 229 P. 499; Vassus v. Northern Pacific Railway Co., 69 Mont. 305, 221 P. 1069, 1072, 1073.
It follows also that the order of February 1, 1924, amending and changing the judgment already entered against “Walker D. Hines, Director General, Hudson & Manhattan Railway Co.,” so that it would run against “James C. Davis, Director General of Railroads (Hudson & Manhattan Railway Co.) and Agent of the President,” was void, since otherwise the so-called amendment would have the effect of giving validity to the judgment at a time more than two years subsequent to the enactment of the Transportation Act, whereas Congress had refused consent to the bringing of such actions after
It is settled beyond dispute that actions at law which may be brought against the Agent designated by the President under the Transportation Act are in legal effect actions against the United States. Dupont de Nemours & Co. v. Davis, Director General, 264 U. S. 456, 462, 44 S. Ct. 364, 68 L. Ed. 788. It is also true that, since the United States can be sued only with the consent of Congress, the conditions imposed by Congress in respect to such actions must be strictly followed. McElrath v. U. S., 102 U. S. 426, 440, 26 L. Ed. 189; Schillinger v. U. S., 155 U. S. 163, 166, 15 S. Ct. 85, 39 L. Ed. 108; Price v. U. S., 174 U. S. 373, 375, 19 S. Ct. 765, 43 L. Ed. 1011; Davis, Agent, v. Donovan, 265 U. S. 257, 263, 44 S. Ct. 513, 68 L. Ed. 1008. And, where the congressional consent specifies the time within which such actions may be brought, the provision operates as a condition of liability, not merely as a period of limitation. Finn v. U. S., 123 U. S. 227, 233, 8 S. Ct. 82, 31 L. Ed. 128; James C. Davis, Agent, v. L. L. Cohen & Co., 268 U. S. 638, 45 S. Ct. 633, 69 L. Ed. 1129.
It follows that the Supreme Court of the County of New York was without jurisdiction to enter the judgment relied upon by the present appellant, and since that fact is apparent upon the face of the record the appellee was entitled to treat it as a nullity. Old Wayne Mutual Ins. Association v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345; Vallely, Trustee, v. Northern Insurance Co., 254 U. S. 348, 353, 41 S. Ct. 116, 65 L. Ed. 297.
The judgment of the lower court dismissing the petition is affirmed with costs.
