122 F. 286 (W.D.Mo. 1903), Kelly v. Chicago & A. Ry. Co.

Citation:122 F. 286
Party Name:KELLY v. CHICAGO & A. RY. CO. et al.
Case Date:April 27, 1903
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 286

122 F. 286 (W.D.Mo. 1903)

KELLY

v.

CHICAGO & A. RY. CO. et al.

United States Circuit Court, W.D. Missouri, Western Division.

April 27, 1903

I. N. Watson, for plaintiff.

F. Houston, for defendants.

Page 287

PHILLIPS, District Judge.

This action was instituted in the circuit court of Jackson county, Mo., on the 6th day of June, 1902. As originally instituted, the suit was against the Chicago & Alton Railway Company and L.A. Strause, defendants. No writ of summons appears to have been issued against the defendant Strause. A writ of summons was issued against the Chicago & Alton Railway Company on the 10th day of June, 1902, made returnable on the second Monday in October; it being the 13th day of the month, which was the first day of the October term, 1902, of said court. Afterwards, on the 18th day of September, 1902, in vacation of court, it seems that the plaintiff filed an amended petition herein; making the Kansas City, St. Louis & Chicago Railroad Company a party defendant. The transcript recites that said amended petition cannot be found with the papers, and is not, therefore, certified up with the transcript. The transcript does not show that any writ of summons ever issued against the railroad company added in the amended petition. On October 14, 1902, which was the second day of the said October term of the state court, the defendant Chicago & Alton Railway Company filed its petition praying a removal of the cause into this court, from which petition it appears that the Chicago & Alton Railway Company was at the time of the institution of the suit, and yet is, a corporation of the state of Illinois, and that the plaintiff, Kelly, was during the time aforesaid, and still is, a citizen of the state of Missouri, and that the Kansas City, St. Louis & Chicago Railroad Company is also a citizen of the state of Missouri. What the allegations of the amended petition were as to how the latter company became liable to the action, the court is not advised, because the petition is not in the transcript; but it is alleged in the petition for removal of the cause that prior to June 21, 1901, said Kansas City, St. Louis & Chicago Railroad Company leased its road to the Chicago & Alton Railroad Company, which latter road subsequently, in April, 1900, re-leased said road to the defendant Chicago & Alton Railway Company, which was in possession and control of said road, and was alone operating the same, on the 21st of June, 1901, at the time of the injury in question; that the Kansas City, St. Louis & Chicago Railroad Company at the time of the alleged injury had no control or authority whatever over said train, and was not operating it, and did not own it, and was in no wise liable to the plaintiff on account of the negligence of which he complains; that the defendant Strause was at said time an employe of the Chicago & Alton Railway Company, and had nothing whatever to do with the inspection or control over the engine of which the plaintiff complains; that he was a mere yard master, whose duties were confined exclusively to the making up of trains; and therefore there is no joint liability existing between the petitioning railroad and the other defendants. The petition alleges that the other defendants were joined solely for the purpose of preventing the Chicago & Alton Railway Company from removing the case into this jurisdiction. It tendered with said petition for removal a sufficient bond. At said October term of said court, and on the 5th day of December, 1902, the state circuit court made an order approving said bond, and ordering the cause removed into this court.

Page 288

The first ground of the motion to remand, which will be considered by the court, is that the suit was brought to the October term of the Jackson county circuit court, and summons was had upon the defendant Chicago & Alton Railway Company more than 15 days prior to the first day of the term, and the defendant Chicago & Alton Railway Company did not appear and file its petition and bond for removal in the time required by law. In other words, the contention of plaintiff's counsel is that the petition for removal should have been presented, in my opinion, is now well taken. The amendatory act, approved March 22, 1901 (Laws Mo. 1901, pp. 86; section 597 of the practice act), in the first provision thereof, applies to counties having over 40,000 inhabitants, which declares that:

'Every defendant who shall be summoned or notified according to law shall demur to or answer the petition on or before the third day of the term at which he is bound to appear, unless longer time be granted by the court; and in every such case the action shall be triable at the return term.,

This part of the section is complete in its provisions respecting suits instituted in counties, like Jackson county, having a population of over 40,000 inhabitants. It requires that the defendant shall demur or answer the petition on or before the third day of the term, and makes the case absolutely triable at that term. The proviso of the statute has exclusive reference to suits instituted in counties having 40,000 inhabitants or less. Every defendant...

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