"We deem it advisable to present to your honors for adjudication, as provided in article 1043 of the Revised Statutes, the issue of law raised by appellant's first assignment of error whether or not, upon the statement following, the district court of Montague county had jurisdiction to render a personal judgment against the Chicago, Rock Island & Pacific Railway Company. This suit was brought in the district court of Montague county by appellant, a nonresident, against the Chicago, Rock Island & Pacific Railway Company, also a nonresident, being a corporation chartered under the laws of Iowa and Illinois, and against the Chicago, Rock Island & Texas Railway Company, a corporation chartered under the laws of Texas, to recover damages resulting to appellant from personal injuries received by him in the state of Iowa on the railway and through the negligence of the Chicago, Rock Island & Pacific Railway Company, while traveling on a drover's pass accompanying a shipment of live stock from Ryan, Ind. T., to Chicago, Ill. The Chicago, Rock Island & Pacific
Railway Company, hereinafter styled the `Pacific Company,' made no appearance in the case, and judgment by default was taken against it upon citations served upon S. B. Hovey as vice president and acting president, general superintendent, and general manager of both of said companies, and upon J. D. Gilfillin, as local agent thereof at Bowie, in Montague county, Tex.; but affidavits were filed by Hovey and Gilfillin (who were agents and officers of the Texas Company) denying that they were officers or agents of the Pacific Company, who also testified to the same facts, and upon final hearing the court dismissed the suit as to the Pacific Company for want of jurisdiction, and instructed a verdict in favor of the other company, from which judgment this appeal is prosecuted.
"A notice, as provided in the statute for serving notice on a nonresident defendant, was also served on one R. L. Heck, as local agent at Terrall, Ind. T., who was local agent there of the Pacific Company, but who testified that the Texas Company had no agent there, although he transacted some of its business. The evidence showed that the railway of the Pacific Company was built through Indian Territory to the middle of Red river in the summer or fall of 1892, and that this line of railway was thence extended and completed to Ft. Worth in the early part of the succeeding year by and in the name of the Texas Company, which had been chartered for that purpose, and thus became a part of what has since been known as the `Rock Island Route'; the two companies entering into an agreement (in January, 1893) for the operation of said line or lines of railway, which is quoted in full in the printed brief of the Texas Company. The substance of the scope and purpose of this agreement is sufficiently given, we think, for the purposes of this certificate, in the printed brief of appellant, from which we quote as follows: `The purpose of said agreement is set out in section 2, art. 1, thereof, as follows: "It is declared to be the purpose of the parties hereto, by the execution of these articles and the performance of the several covenants, agreements, and premises herein set out, to establish and operate through lines of railway, to connect, when same can be done with reasonable directness, all points on the lines of both of the parties hereto, treating all railroads with which either party may have traffic or running arrangements, or of which it shall have any leasehold interest, as a part of the line of the party hereto with which it is so related, and to secure the operation of all said lines as to through traffic as they should be operated if all were owned by one corporation." By section 1 of article 2 of said agreement the Pacific Company bound itself to purchase at par value the bonds of the Texas Company, not exceeding $20,000 per mile; and by section 2 of said article it bound itself to deliver to the Texas Company all west-bound through traffic which it should receive for transportation to any point which could be reached with reasonable directness by through lines composed in whole or in part of some portions of the railways of the parties to said agreement; and it also bound itself to make all reasonable efforts to secure the transportation of all through traffic which might be received by it over such through lines. By section 4 of said article, said Pacific Company bound itself to receive and transport over its said lines all through traffic delivered to it by the Texas Company. By section 1, art. 2, of said agreement, the Texas Company bound itself, in so far as it lawfully could, to deliver to the Pacific Company all east-bound through traffic received by it for transportation to any point which could be reached with reasonable directness by a through line composed in whole or in part of the railways of said companies, and that it would make all lawful and reasonable efforts to secure the transportation of all such through traffic which might be received by it over such through lines. By section 2 of said article said Texas Company bound itself to receive from said Pacific Company and transport over its line all west-bound traffic. By section 6 of article 4 of said agreement it is provided that the rate on all east-bound through traffic which should pass over any through line established by said agreement should be fixed from time to time by the Texas Company, and rates on west-bound through traffic should be fixed by the Pacific Company. And by section 7 of article 4 of said agreement it is provided that all such through rates shall be prorated between the companies upon the basis of the mileage over which such traffic shall be transported, counting every mile of the road of the Texas Company as one and one-half miles, and every mile of the road of the Pacific Company as one mile. Section 8 of this article provides that each company shall keep full and accurate account of all through traffic passing over said line, and a statement of such account shall be delivered monthly each to the other; and it is further provided in said section that each company shall have the right, by its attorney or agent, to examine at any time during business hours on business days each other's books, accounts, and papers relating to through business, and shall have the right to take transcripts of such books, accounts, and papers. It was also provided in the latter part of this section that the Texas Company should keep a full, true, and correct account of its receipts from all sources and its disbursements for all purposes, and exhibit same on demand to the Pacific Company or its duly-authorized agent. By section 9 of said article said Pacific Company bound itself to furnish to the Texas Company, on request, all such equipments as should be necessary for the operation of the railway of the said Texas Company, for the use of which it should receive the same compensation
as usually allowed for such equipment. By section 12 it is provided that the parties to said agreement shall join in operating through trains for the transportation of through traffic, and that each of said parties would furnish power to move same over their respective tracks. Section 16 of said article was as follows, to wit: "This contract shall be obligatory on the parties for a term of nine hundred and ninety-nine years from the first day of January, 1893, and the Rock Island Company [Pacific Company] is expressly authorized to assign and transfer its interest in same by mortgage or other conveyance of its railway and other railway property."'
"The further undisputed facts relied upon by appellant and set out in his printed brief to show the relation between those two companies indicate that they were carrying out the agreement thus entered into in the practical operation of the Rock Island Route or System in the through transportation of passengers and freight. It was further made to appear that the president of the Texas Company, M. A. Lowe, who resides at Topeka, Kan., was one of the general attorneys of the Pacific Company, and that he owned nearly all the stock of the Texas Company, and dictated its policy, and that no dividends had ever been paid on the Texas Company's stock; and that the Texas Company had reported to the interstate commerce commission that it was controlled by the Pacific Company, which owned the majority of its capital stock and bonds. It further reported for the year ending June 30, 1899, that its bonds were owned by the Pacific Company, which controlled it by a traffic agreement. For a statement more in detail of the undisputed facts bearing upon the matter in question, we respectfully refer, as a sort of exhibit to this statement, to the printed briefs which the rules require to accompany this certificate; and if, in any respect, we have misconstrued what is thus referred to, we do not want to be understood as intending to change or modify, but only to condense, what is there set out in full....
