Baltimore & O.R. Co. v. Weedon

• Decision Date: 02 February 1897
• Docket Number: 263.
• Citation: 78 F. 584
• Parties: BALTIMORE & O. R. CO. v. WEEDON et al.
• Court: U.S. Court of Appeals — Sixth Circuit

78 F. 584

BALTIMORE & O. R. CO. v. WEEDON et al.

No. 263.

United States Court of Appeals, Sixth Circuit.

February 2, 1897

The action was begun by the Baltimore & Ohio Railroad Company against Alfred Weedon, the clerk of the court of common pleas of Guernsey county, and his official bondsmen, to recover damages for an alleged breach of Weedon's official duty as such clerk. The penal sum of the bond was $10,000, and one of the conditions of it was that Weedon should well and truly do and perform, all and singular, each and every duty of his said office as clerk of the common pleas court enjoined upon him by law. Plaintiff's petition set out in detail the circumstances of defendant's alleged breach of duty. It averred that one Grubbs had obtained a verdict and judgment against the plaintiff company for $1,995 for personal injury that a bill of exceptions was taken, for the purpose of presenting the same to the circuit court on error; that a motion for new trial was duly made and overruled; that after the rendition of the judgment, plaintiff duly filed a petition in error in the circuit court of said county attached to which petition was a certified copy of the docket and journal entires in said cause in the court of common pleas, and the original papers as required by law; that he delivered said petition and accompanying papers to the defendant Weedon, clerk of the common pleas court, and ex officio clerk of the circuit court; that with the said petition in error the plaintiff filed a praecipe in due and proper form, in accordance with the statute in such cases made and provided, directing the said clerk to issue a summons in error to the sheriff of Guernsey county, Ohio returnable according to law directing the said sheriff to summon the said Thomas Grubbs, the defendant in error named in said petition in error, and to notify him of the pendency of the same; that the said defendant, as clerk, disregarding his duties in the premises, failed to issue any summons in error upon said petition in error and praecipe so filed as aforesaid, and the said cause, after the expiration of six months after rendition of said judgment,-- the period of limitation, within which error proceedings could be brought under the law,-- was dismissed by said circuit court because of the clerk's failure to issue summons as required by statute and the praecipe, and the consequent failure to obtain jurisdiction in error over said Grubbs, named as defendant in error therein; that plaintiff had filed a supersedeas bond to stay execution of judgment pending error proceedings; that Grubbs thereafter collected his judgment and interest and costs, amounting in all to $2,231.04; that there were numerous errors apparent upon the record in the suit of Grubbs against the plaintiff, and if the defendant as clerk, had performed his duty, the judgment would have been reversed; and upon the merits of the action Grubbs had no cause of action. Wherefore the plaintiff averred that by reason of defendant's neglect and default as clerk the plaintiff had suffered a loss of $2,231.04, for which sum and interest from December 24, 1892, judgment is prayed.

The first defense of the answer was a general denial of all the facts alleged concerning the praecipe, the dismissal of the error proceedings, the collection of judgment, etc. The second defense of the answer charged, in effect, that the failure to serve a summons in the cause was the neglect and default of the plaintiff in taking all the papers from the clerk's office, and that he did not know, until after the expiration of the six months, when plaintiff returned the papers, that a petition in error and praecipe was ever filed in his office. The reply of plaintiff denied that it or its attorney had removed the papers from the clerk's office as alleged in the answer. The cause was submitted to the court, a jury being waived in writing, and the court made the following findings:

'A stipulation in writing, signed by the parties hereto, having been filed in this cause, waiving a trial by jury, the case came on for trial of the facts and law before the court on the 7th day of June, 1894. And, the testimony having been submitted by the respective parties, and the argument of counsel having been heard thereon (the plaintiff requested the court to make a special finding of all of the facts and conclusions of law thereon in this case, which is accordingly done as follows): The court, upon consideration thereof, finds:

'First, in respect of the facts. One Thomas Grubbs sued the above-named plaintiff in the court of common pleas for Guernsey county, Ohio, to recover damages for an injury which he alleged was sustained by him on the 10th day of March, 1885, in consequence of the negligence of the defendant in said suit in suddenly starting its engine at a coaling station at or near--, when the engine had been stopped to have its tender filled with coal from the chutes of parties who, by virtue of a contract with the railroad company, were accustomed to supply coal to trains as wanted at that place. Grubbs was the servant of the owner of the coal, and alleged that, after having gone upon the engine to get the customary certificate of the engineer for the coal which had been taken on, he was descending from the cab, when suddenly and negligently the engine was sent forward with a jerk, which sent him down, and caused his injury. That suit was tried upon the issues joined therein, and resulted in a verdict and judgment for the plaintiff in the sum of $1,995, and $-- costs of suit. This judgment was rendered on the -- day of March, 1892. Certain exceptions were taken by the defendant in that suit upon trial, which were thereafter duly incorporated in a bill of exceptions settled by the judge who presided therein. In due season, and within the six months after the judgment allowed by the laws of Ohio, for that purpose, to wit, in the month of June, 1892, the said railroad company delivered, for the purpose of being filed, to the defendant, Weedon, who was, and since the 8th day of February, A.D. 1891, had been, and until the 8th day of February, A.D. 1894, continued to be, the clerk of the said court of common pleas, as well as the circuit court for that county, its petition in error, praying for the transfer into the circuit court of the record in that cause made in the court of common pleas, to the end that for errors which it complained had been committed by the said court of common pleas the said judgment might be reversed, and also at the same time delivered to the said clerk, for the purpose of filing a praecipe for a summons to the defendant in error, Grubbs, to appear in the circuit court to answer the proceedings in error. The petition and praecipe were not then indorsed by the said clerk with the proper filing, and were not so indorsed until after the expiration of the six months above mentioned. The said praecipe for summons was negligently lost sight of by the said Weedon, and he negligently failed to issue the said summons as he should have done, or at all. The record and other requisite papers were transferred into the circuit court, the proceedings being regular to carry the case into that court for review on error, except for the want of the issuance and service of the summons to the defendant in error, Grubbs, or of any step which was requisite to bring him in on the writ of error. Nothing was done by the plaintiff in error in that proceeding, after filing the petition and praecipe aforesaid, to bring in the defendant in error, and no further attention was given to that subject by the said plaintiff in error. In this, there was negligence on the part of its attorneys. The cause was upon the calendar of the said circuit court for the December term, 1892, and on the 8th day of that month was called for hearing by that court, when, it being brought to its attention that there had been no summons to the defendant in error, and no waiver thereof, the proceedings in error were dismissed. The six months aforesaid allowed by the statute for the purpose of such proceedings had then expired, and the dismissal aforesaid operated to finally deprive the railroad company aforesaid of any right and opportunity to obtain a review of the case, or a reversal of the said judgment of the court of common pleas. The dismissal by the said circuit court was the result of the negligence of both the said Weedon, as clerk, and the attorney for the said railroad company; and this court is satisfied by the evidence it would not have happened but for the negligence of each. It was the duty of the clerk to issue the process to the sheriff. It was the duty of the attorney to see that it was made, or the service waived. It is shown that in practice such waiver is frequently made by attorneys as a matter of courtesy, or to save costs. The said railroad company was, in consequence, obliged to pay the amount of the judgment, with interest and costs, which it did on the 24th day of December, 1892, upon an execution which had been duly issued from said court of common pleas therefor; the whole amount paid being the sum of $2,231.04. Subject to the question of the competency of the inquiry, this court has examined the record and bill of exceptions in the case as subject to removal by the railroad company into the said circuit court, and is of the opinion that for an error in the refusal of the court of common pleas to permit a witness called by the defendants therein to testify whether the movement of the engine at the time of the accident was such as was usual or not (such witness having been the fireman on the engine at the time), the judgment would, in all probability, have been reversed. But this court sees no other reversible error in that record and

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