Kansas City, Ft Co v. Daughtry

• Decision Date: 02 February 1891
• Citation: 138 U.S. 298,34 L.Ed. 963,11 S.Ct. 306
• Parties: KANSAS CITY, FT. S. & M. R. CO. v. DAUGHTRY
• Court: U.S. Supreme Court

138 U.S. 298

11 S.Ct. 306

34 L.Ed. 963

KANSAS CITY, FT. S. & M. R. CO. v. DAUGHTRY.

February 2, 1891.

Wallace Pratt, for plaintiff in error.

Luke E. Wright and George Gantt, for defendant in error.

FULLER, C. J.

This was an action commenced in the circuit court of Shelby county, Tenn., by R. S. Daughtry, as administrator of John W. Daughtry, deceased, against the Kansas City, Fort Scott & Memphis Railroad Company and the Kansas City, Memphis & Birmingham Railroad Company, on the 16th of August, 1888, for the recovery of damages for the death of John W. Daughtry, alleged to have been occasioned by the negligence of defendants. The summons was returnable on the third Monday of September, 1888, and alleged, as to the defendants, 'both of which are railroad corporations conducting business in Shelby county, Tennessee, with offices and agencies in said county and state.' The return of the sheriff was as follows: 'Came to hand 16th day of August, 1888. Executed on the Kansas City, Fort Scott and Memphis Railroad Company by reading the contents of this writ to J. H. Sullivan, sup't of said Railroad Co., he being the highest officer to be found in my county, and executed on the Kansas City, Birmingham and Memphis Railroad Company by reading the contents of this writ to J. H. Sullivan, sup't, he being the highest officer of said Co. to be found in my county. This 23d day of August, 1888.' The declaration was filed September 17, 1888, and averred, in the first count, defendants to be 'corporate persons, doing business as such in Tennessee, (underlicense and by consent of the state;)' and in the second count described the defendant corporations as 'doing business in Tennessee as aforesaid.' It was also alleged in the first count that defendants 'are and were on and prior to the 16th of August, 1888, engaged in operating important lines of railway under one common or general management, with depots and terminal facilities in the taxing district of Shelby county;' and in the second count, that 'on or about the 12th day of August, 1888, defendant companies were operating cars and engines on their railroad lines leading into the taxing distict of Shelby county.'

The statutes of Tennessee provide as follows: '(4238) The declaration of the plaintiff shall be filed within the first three days of the term to which the writ is returnable, otherwise the suit may, upon motion of the defendant, be dismissed at plaintiff's cost. (4239) The defendant shall appear and demur or plead within the first two days after the time allotted for filing the declaration, otherwise the plaintiff may have judgment by default. (4240) The plaintiff and defendant shall, within the first two days after each subsequent step taken by the other in making up an issue, demur or plead thereto, on penalty of having the suit dismissed, or judgment taken by default, according as the failure is by the plaintiff or defendant. (4241) The court may, however, enlarge the time for pleading, upon application of either party, in proper cases, or excuse the failure to plead within the time prescribed, upon good cause shown.' 2 Thomp. & S. St. Tenn. 1871, p. 1714 et seq.; Mill. & V. Code 1884, p. 949. The declaration was filed on the first day of the term to which the writ was returnable, and the defendants' pleas were due during that week. Upon the 25th of September the Kansas City, Memphis & Birmingham Railroad Company filed its plea of the general issue. The circuit court of Shelby county had five regular terms, 'commencing on the third Mondays in January, March, May, September, and November of each year.' Acts Tenn. 1883, p. 257; Mill. & V. Code, p. 49, § 129. On the 29th of May, 1889, after the lapse of four terms, the Kansas City, Fort Scott & Memphis Railroad Company filed its petition and bond for the removal of the suit to the circuit court of the United States for the western district of Tennessee. This petition commenced: 'Comes your petitioner, the Kansas City, Fort Scott and Memphis Railroad Company, and shows to the court' that the matter in dispute, exclusive of interest and costs, exceeds the sum or value of $2,000; 'that the controversy in said suit is between citizens of different states; that your petitioner, the Kansas City, Fort Scott and Memphis Railroad Company, was, at the time when this suit was commenced, and still is, a corporation created and existing under and by virtue of the laws of the states of Missouri, Arkansas, and Kansas, and was, and still is, a citizen of said states; that the plaintiff, R. S. Daughtry, administrator, was, at the beginning of this suit, and still is, a citizen and resident of the state of Tennessee;' that there is in the suit a controversy wholly between the administrator and the petitioner, which can be fully determined as between them without the presence of petitioner's co-defendant; 'that its said co-defendant, the Kansas City, Memphis and Birmingham Railroad Company, is a corporation created and existing under and by virtue of the laws of the state of Tennessee, and that it is a citizen thereof;' that the acts alleged to have been done jointly by petitioner and its co-defendant were, if done at all, done by petitioner alone, and its co-defendant did not at the time, and 'does not now, and never did, own, possess, control, or use the said railroad track upon which said acts were done,' etc.; 'that the said Kansas City, Memphis and Birmingham Railroad Company has been joined in this action as a nominal party defendant for the sole purpose of preventing your petitioner from removing this case to the circuit court of the United States.' Upon the 1st of June, 1889, the affidavit of Daughtry, the administrator, was filed, stating 'that he is a citizen of the state of Arkansas and has been a citizen of said state for the last ten years; that all beneficiaries in said suit are also citizens of the state of Arkansas and have been for the last ten years.' On that day the state circuit court entered this order:

This day the defendant, the Kansas City, For Scott and Memphis Railroad Co., presented to the court its petition and bond to remove this case to the circuit court of the Unied States for the western division of the western district of Tennessee, which was filed herein on May 29, 1889; and the court, having duly considered said petition, together with the affidavit of R. S. Daughtry filed herein June 1, 1889, and heard argument of counsel, is of the opinion that upon said petition and affidavit said defendant is not entitled to the order of removal prayed in its said petition, and its application in that behalf is denied, and said defendant is allowed one day to plead to the merits; to all of which the said Kansas City, Fort Scott and Memphis Railroad Company, by its attorney, excepts, and asks that its exceptions be noted of record, which is accordingly done.' Thereupon, on the 6th day of June, the cause came on for trial before a jury duly impaneled, and on the 7th was dismissed by plaintiff as against the Kansas City, Memphis & Birmingham Railroad Company. Verdict and judgment then passed in favor of the plaintiff and against the Kansas City, Fort Scott & Memphis Railroad Company, whereupon the latter took the cause by appeal to the supreme court of Tennessee, where, among other errors assigned, was one that 'it was error to refuse to...