Charles Davis v. Cleveland, Cincinnati Chicago St Louis Railway Company 1910

Decision Date04 April 1910
Docket NumberNo. 123,123
PartiesCHARLES A. DAVIS, Executor of the Estate of Frank E. Jandt, Deceased, Plff. in Err., v. CLEVELAND, CINCINNATI, CHICAGO, & ST. LOUIS RAILWAY COMPANY et al. Submitted March 3, & 4, 1910
CourtU.S. Supreme Court

Messrs. Wilbur Owen and Elbert H. Hubbard for plaintiff in error.

[Argument of Counsel from pages 158-162 intentionally omitted] Messrs. William H. Farnsworth, Frank L. Littleton, and Shull, Farnsworth, & Sammis for defendants in error.

[Argument of Counsel from pages 162-165 intentionally omitted] Mr. Justice McKenna delivered the opinion of the court:

This case presents a question of jurisdiction arising from the levy in attachment proceedings on freight cars alleged to have been engaged, when attached, in interstate commerce. The case is here on certificate.

Plaintiff in error, as executor of the estate of Frank E. Jandt, brought an action against the Cleveland, Cincinnati, Chicago, & St. Louis Railway Company for causing the death of Jandt, a statute of Illinois giving such an action to the personal representative of a person whose death has been caused by 'wrongful act, neglect, or default.' The cause of action arose in Illinois. The action was brought, however, in the district court of Woodbury county, state of Iowa, and under the laws of the latter state writs of attachment and garnishment were issued and levied upon certain cars of the C. C. C. & St. L. Ry. Co. in the possession of the other defendants in error, referred to hereafter as the garnishee companies. Notice of garnishment was duly served on the garnishee companies, and each of them filed answers. Plaintiff in the action, and we will so refer to him, controverted by proper pleadings the answers, and demanded that evidence be taken on the issues joined.

The original notice was served on the C. C. C. & St. L. Ry. Co., at its principal place of business in the state of Ohio; also noice of attachment and garnishment. It filed a petition for removal of the action to the circuit court of the United States for the northern district of Iowa, western division. Its peti- tion alleged that it was a corporation duly formed and organized under the laws of Indiana, and that the plaintiff was a citizen of Iowa. The petition was granted and the case duly removed to the circuit court of the United States. On the second of October, 1905, the C. C. C. & St. L. Ry. Co. filed a motion, which was denominated a motion to quash and set aside service, in which it stated that it appeared specially for the purpose of the motion only, 'to quash and set aside the service of attachment and garnishment attempted to be made in the cause by plaintiff against the defendant's property.' The motion was supported by an affidavit. The affidavit stated that the company was incorporated under the laws of Indiana and Ohio, and conducted and operated lines of railway in those states and in Illinois, with its principal place of business in Cincinnati, Ohio; that it was not incorporated in Iowa, and had no agent or agency of any character in that state; that it was a common carrier of freight and passengers, and in the carrying on of such business it owned and operated cars for the transportation of freight and merchandise through the various states; that in the conduct of such business it had arrangements, contracts, and agreements with various connecting railroad companies doing business as common carriers, including all of the railway companies attached and garnisheed in the action by plaintiff, under which those companies accepted from it, at points on its line of road, its cars loaded with goods and merchandise destined for various points on their respective lines, to be transported through the various states to destinations, constituting interstate shipments of commerce. It was stated that it was provided in the agreement that such connecting carriers should have the right to reload the cars received by them, and so use the same in returning them to the place where received, and that in all cases the cars of the company were to be returned to it in the usual and ordinary course of transit as soon as the nature and character of the business would permit. It was further stated that, under the laws of Congress, the company was bound to furnish cars so loaded, to be transported continuously from one state to another without being unloaded, and that, under the same laws, connecting carriers were bound to receive the same and transport them from one state to another. That, in pursuance of the agreements and laws of Congress, the cars attached were delivered by the C. C. C. & St. L. Ry. Co. to the other companies, and so received by them; that the cars were part of the company's rolling stock, and were necessary to enable it to preform its duties as a common carrier; that by reason of the commerce clause of the national Constitution and of the interstate commerce act the cars could not be levied upon; that the company had not been served personally or by publication, and had not appeared to the action or any writ issued in the cause. It was further stated that none of the garnishee companies was indebted to the company, and that any accounts which might be due from the garnisheed companies were only by reason of the contracts and agreements for the use of the cars, as heretofore stated, under which the permits for the use of the cars were arranged between the companies 'by wheelage or mileage of such cars, and were constantly and hourly changed from bills due one company to bills due the other company, which beills were satisfied and settled by such exchange of service and use of each other's cars. And such agreements and contracts are to be discharged, satisfied, and settled only in the city of Chicago and state of Illinois, where the same are made, and such accounts, or debts, if any, in favor of this defendant, have no situs in the state of Iowa.' The affidavit was supplemented by two others.

Plaintiff filed a 'resistance' to the motion to quash and to the motion of the granishee companies, and alleged that a special appearance was 'unwarranted and unauthorized by law;' and that, as the purpose sought by the motion of the defendant company could only be had by a general appearance, the special appearance should be construed to be such, and subject the 'person of the defendant as well as the prop- erty actually attached, and the property and money of the defendant sought to be reached by garnishment proceedings, to the jurisdiction of the court.' The ground of this conclusion was stated, with some repetition, to be that the special appearance was not for the purpose of raising any question of lack of notice, or notice of defect or irregularity of process, but to contest the right to attach property by evidence outside the record of the case, and required the court to pass upon the merits of the attachment. Plaintiff denied that the property attached was engaged in interstate commerce or in the transportation of interstate commerce at the time they were attached, that they were not in use at the time they were attsached, but were standing empty upon the tracks of the railway companies in whose possession they were found, and denied the existence of the agreements and arrangements between the C. C. C. & St. L. Ry. Co. and the other companies in regard to the cars, and that no contractual rules existed between them; that the cars were not necessary, either to that company or to the other companies, to enable them to perform their duties as common carriers, and alleged that they were subject to attachment as other personal property. It was stated that the garnishee companies had no interest in the attached cars, and none of them had served notice of interest or ownership on the plaintiff nor on the sheriff.

The answers of five of the garnishee companies denied indebtedness to the C. C. C. & St. L. Ry. Co., averred the existence of agreements as to the cars, substantially as set out by that defendant, also their duties as common carriers under the acts of Congress, and that the cars were in their possession in pursuance of the agreements with the defendant, and were to be returned empty or loaded, in the usual and customary course of business. The other companies also denied indebtedness to the C. C. C. & St. L. Ry. Co., and in effect set up the defense that the cars were in interstate commerce business.

On the 22d of May. 1906, the court sustained the motion to quash the judgment and discharge the gar- nishees thereunder. On June 6 'the court' (we quote from the record) 'rendered further judgment, dismissing the said cause of action as to said principal defendant, on the ground that the court had no jurisdiction of the defendant or the attached property of the defendant, and taxed the costs in the case to the plaintiff.'

The time for the allowance and filing the bill of exceptions was extended to October 28, 1906, and on the 28th of September it was allowed, the order reciting that the date 'being one of the regular days of the May, A. D., 1906, term of said court.' The bill of exceptions also recited that it was submitted to the court, with a prayer that it 'be signed and certified by the judge, and approved by him, and made a part of the record in said case, preparatory to the prosecution of a writ of error from the said circuit court of the United States to the Supreme Court of the United States.' It concludes as follows:

'And the court, having examined said transcript of the record, papers, and proceedings, hereby certifies that the same contains the entire record in said cause, including the plaintiff's petition, the answers of the garnishees, the defendant's motion to quash and set aside service, and the plaintiff's resistance thereto, and all of the proceedings had thereunder in reference thereto, including the opinion, orders, and judgment of the court thereon, and the exceptions of the plaintiff thereto, and...

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