Anding v. Texas & P. Ry. Co.
| Decision Date | 30 March 1925 |
| Docket Number | 27011 |
| Citation | 158 La. 412,104 So. 190 |
| Parties | ANDING v. TEXAS & P. RY. CO. et al. In re ANDING |
| Court | Louisiana Supreme Court |
Rehearing Denied April 27, 1925
Judgment amended in part and affirmed in part.
Howell & Wortham, of Napoleonville, C. A. Morvant, of Thibodaux, and E. D. Gianelloni, of Napoleonville, for applicant.
Marks & Gilbert, of Napoleonville, and Spencer, Gidiere, Phelps & Dunbar, of New Orleans, for Texas & P. Ry. Co. and receivers.
Plaintiff instituted this suit, alleging that on October 27, 1920, while riding as a passenger on a train that was being operated by the Texas & Pacific Railway Company, she was, due to the gross negligence of that company, its agents and employees, seriously injured, and demanding judgment against the company for damages for the injuries thus received by her. The suit was filed on September 1, 1921. Seven days later, which was before citation had been issued and served, plaintiff filed a supplemental petition, in which she alleged that, since the filing of her original petition, she had learned that the Texas & Pacific Railway Company was in the hands of receivers, and that John L. Lancaster and Charles L. Wallace were its receivers, and were maintaining a domiciliary office in the city of New Orleans, and prayed that the Texas & Pacific Railway Company be cited, through said receivers, to appear and answer the original and supplemental petitions filed, and that there be judgment as prayed for in the original petition, against said company and its receivers as such. This amended petition was filed without an order of court permitting it to be filed. After it was filed, the clerk issued a citation directed to said railway company, through its receivers, summoning said company, through them, to comply with plaintiff's demand, or to answer the petitions filed by plaintiff, certified copies of which accompanied the citation. The sheriff made service on September 9, 1921, and in his return recites that he served a copy of the citation and of the petition which accompanied it on the Texas & Pacific Railway Company, through its receivers, J. L. Lancaster and Charles L. Wallace, by leaving the same at their office in the hands of G. H. Decker, the chief clerk for said receivers; the receivers, themselves, being absent from the office. On October 20, 1921, the railway company filed an exception, based on the ground that plaintiff's petition disclosed no cause of action as against it for the reason that, at the time of the accident, the company was in the hands of receivers, appointed by the United States District Court for the Western District of Louisiana, and did not have control over the operation of its railway line, and therefore is not responsible for the alleged accident. On November 15, 1921, the receivers excepted to the suit on the ground that they had not been cited as required by law. Two days later, and more than a year after the occurrence of the accident, plaintiff filed a second supplemental petition, in which she alleged for the first time that the accident complained of occurred while the railway was being operated by receivers, and that the negligence charged in her original petition occurred while the road was being so operated, and is chargeable to the receivership. In this supplemental petition she prayed for judgment against John L. Lancaster and Charles L. Wallace, receivers of the Texas & Pacific Railway Company, and had them cited accordingly. Some weeks after the filing of the foregoing exceptions, the receivers filed a plea of prescription of one year. All of the exceptions filed were overruled. Both the railway company and the receivers, then, after reserving the benefits of their exceptions, filed an answer. The case was tried, but was not decided on the merits, for the reason that, before a decision was reached, the trial court concluded that the exception of no cause of action, filed by the railway company, and the plea of prescription, filed by the receivers, were good, and therefore reconsidered its former action in reference to that exception and plea, and sustained them, dismissing plaintiff's suit. An appeal was taken to the Court of Appeal, First Circuit, and that court rendered judgment, affirming the judgment of the trial court. The case is now before us on a writ of review.
Plaintiff makes no complaint against the ruling of the Court of Appeal sustaining the exception of no cause of action, filed by the railway company. In fact, there are no grounds upon which to assign error, in this respect, for, when the Court of Appeal sustained the exception, there was a petition before it, including the amendments, showing that at the time the accident occurred the railway company was in the hands of receivers; that its railway line and other property were under their exclusive control and management, and that the negligence which caused the accident was chargeable directly to the receivership. Under these facts, the railway company was not liable. High on Receivers, p. 549, § 396; Gableman v. Peoria Railway Co. (C. C.) 82 F. 790; Memphis & Charleston R. Co. v. Hoechner, 67 F. 456, 14 C. C. A. 469.
What plaintiff complains of chiefly is that the Court of Appeal erred in holding that the course of the prescription, pleaded by the receivers, was not interrupted by the service of the original and first supplemental petitions, and of the citation, directed to the railway company, through its receivers, and accompanying those petitions. On the other hand, the receivers say that the course of prescription was not interrupted, (1) because the first supplemental petition did not have the effect of amending the original petition, so as to make the suit one against the receivership, for the reason that this supplemental petition was filed without an order of court permitting it to be filed; (2) because, although the citation, which issued in connection with the original petition, and the first supplemental petition, uses the word "petitions," in referring to the documents accompanying the citation, yet the return of the sheriff thereon shows that he served a copy of the citation and petition that accompanied the citation, which implies that he served a copy of only one petition, when it was necessary that he should have served copies of both; (3) because the citation that accompanied the original and first supplemental petitions was invalid in that it was directed to the "Texas & Pacific Railway Company, a foreign corporation, doing business in the state of Louisiana, through John L. Lancaster and Chas. L. Wallace, its receivers," when it should have been directed to the receivers; (4) because service of citation and of the petition or petitions was made by delivering them to the chief clerk of the receivers, at their office, the receivers being absent therefrom, when the law provides for only two kinds of service in such instances, to wit, personal service, and service at the residence of one of the receivers, that is to say, domiciliary service; and (5) because the original and first supplemental petitions did not convey to the receivers sufficient knowledge of the claim against them to interrupt prescription.
Under this article it is not necessary, in order to interrupt the course of prescription, that the citation be technically correct or even sufficiently correct to form the basis of a judgment, nor is it necessary that the petition state a technically complete cause of action. Thus, in Gueble v. Town of Lafayette, 118 La. 494, 43 So. 63, the plaintiff prayed that the town be cited through its proper officer. Instead of addressing the citation to the town, the clerk addressed it to the mayor, and copies of the petition and citation were served on the latter. This court, while recognizing that the citation was not sufficient to require the town to answer the demand, yet held that, in connection with the copy of the petition served, it was sufficient to interrupt prescription.
And in McCubbin v. Hastings, 27 La.Ann. 713, in which an exception of no cause of action was sustained, with leave to the plaintiff to amend, it was said:
...
To continue reading
Request your trial
-
Frazie v. Orleans Dredging Co
... ... National Park Bank v. Concordia Land & Timber Co., ... 105 So. 234; Keith v. T. & P. R. R. Co., 129 So ... 190, 132 So. 223; Anding v. T. & P. R. R. Co., 104 ... So. 190; Callender v. Marks, 171 So. 86; Vernon ... v. I. C. R. R. Co., 97 So. 493; Blount v. Kansas ... City ... of trade and travel on water ... State ... of Oklahoma v. State of Texas, 42 S.Ct. 406, 258 ... U.S. 574, 66 L.Ed. 771; Brewer-Elliott Oil & Gas Co. v ... U.S. 43 S.Ct. 60, 260 U.S. 77, 67 L.Ed. 140; ... Waterloo ... ...
-
Reeves v. Globe Indemnity Co. of New York
...it." The cases following the McCubbin Case and supporting the above doctrine are: Anding v. Texas & P. R. Co., 158 La. 412, Syl. 2, 104 So. 190; Commercial Nat. Bank Smith, 150 La. 234, 239, 90 So. 581; St. Louis Southwestern R. Co. v. Bolinger & Co. (C.C.A.) 17 F.2d 924; James v. City of N......
-
Broussard v. Rosenblum
...So. 190; King vs. Guynes, 118 La. 344, 42 So. 959; Babin vs. Lyons Lbr. Co., 132 La. 873, 876, 61 So. 855. In the case of Anding vs. T. & P. Ry. Co., 158 La. 412, suit was filed September 1, 1921. The plaintiff alleged on October 27, 1920, while said railway was in the hands of receivers, s......
-
Andrepont v. Ochsner, 20423
...on the demand. Succession of Saunders, 37 La.Ann. 769; Vernon v. Illinois Cent. R. Co., 154 La. 370, 97 So. 493; Anding v. Texas & P. Ry. Co., 158 La. 412, 104 So. 190; Warn v. Mexican Petroleum Corporation, 6 La.App. 55; Calamia v. Mayer, La.App., 174 So. 668. It makes no difference that t......