Rehearing
Denied Oct. 22, 1907.
This
writ of error is from a final judgment against the plaintiff
in error, as plaintiff below, upon demurrer sustained to the
declaration, as finally amended, and election to stand by
such declaration.
The
transcript of record shows that the plaintiff in error filed
suit in trespass on the case, December 7, 1900, in the
superior court of Cook county, against F. C. Austin
Manufacturing Company, and E. W. Meddaugh and Henry B. Joy
as receivers of Chicago & Grand Trunk Railway Company; and
that in 1903 the Grand Trunk Western Railway Company was
impleaded as a defendant therein. Subsequently, after issues
joined and trial in that court upon which verdict was set
aside, the proceedings resulted in submission to a dismissal
as to the defendants Austin Manufacturing Company and the
receivers (upon suggestion of the death of one receiver and
discharge of the other, and delivery of all the railroad
property to the defendant Grand Trunk Western Railway
Company), and continuance of the cause with a new trial
granted as against the Grand Trunk Western Railway Company.
Thereupon, on application of such remaining defendant, the
cause was removed to the Circuit Court of the United States
on June 19, 1905. Other proceedings in the Superior Court
which are referred to in the transcript, are not material
upon this writ of error. Several amended declarations were
filed, resulting in the final amended declaration, upon which
this judgment of dismissal rests under demurrer.
This
declaration avers that the plaintiff in error was injured on
March 5, 1900, in operations of the railroad under receivers
named, through negligence in such operation, while he was
'in the exercise of due care and caution about his own
safety,' and that the receivers were appointed and acting
under orders of the United States Court for the Eastern
District of Michigan, in foreclosure proceedings against the
railroad company then owning the road. For recovery thereupon
against the defendant in error, subsequent proceedings in
that court under a foreclosure decree are averred in the
filing of a petition by the defendant in error, as purchaser
under the decree, and an order of the court granting the
prayer of the petition; each entitled in that cause and
reading as follows:
First. 'This petition of the Grand Trunk Western Railway
Company respectfully shows:
'(1)
That it is a corporation existing under and by virtue of
the laws of the states of Michigan and Indiana, created as
hereinafter stated; that it is now the owner of the entire
railroad and property formerly owned by the Chicago & Grand
Trunk Railway Company-- one of the defendants in the
above-entitled cause-- which were embraced in and sold
under and pursuant to the decree in said cause; and that it
derived its said title through the following deeds of
conveyance: (a) By separate deeds for each of the states of
Michigan, Indiana, and Illinois, of the portion of said
railroad and property lying and being in each of said
states, by Walter S. Harsha, special master commissioner,
to Charles M. Hays and Elijah W. Meddaugh, the purchasers
at the sale, made pursuant to said decree, in which deeds
said complainant, the Mercantile Trust Company (of New
York), trustee, and said defendants, the Chicago & Grand
Trunk Railway Company, the Union Trust Company (of
Detroit), trustee, and Hugh Paton, trustee, joined. (b) By
separate deeds of conveyance, for each of said states, by
said Hays and Meddaugh, of that portion of said railroad
and property lying and being in the state of Michigan to
the Port Huron & Indiana Railway Company; of that portion
thereof lying and being in the state of Indiana, to the
Indiana & Illinois Railway Company; and of that portion
thereof lying and being in the state of Illinois, to the
Chicago Lake County Railway Company-- each of said railway
companies having been organized by said Hays and Meddaugh,
pursuant to statutory provisions, for the express purpose
of accepting such conveyances.
'(2)
That subsequently said Port Huron & Indiana Railway Company
and said Indiana & Illinois Railway Company were
consolidated, and thereby your petitioner was duly created,
pursuant to the statutes of the states of Michigan and
Indiana. Afterward your petitioner, having become the owner
of the entire capital stock of said Chicago Lake County
Railway Company, purchased that part of said railroad and
property lying and being in the state of Illinois, and
received a deed thereof from said Chicago Lake County
Railway Company.
'(3)
That by the laws of the states of Michigan and Indiana,
under and pursuant to which it was created as aforesaid,
your petitioner is expressly made liable for all the debts
and obligations of its constituent members, to wit: Said
Port Huron & Indiana Railway Company and said Indiana &
Illinois Railway Company; and by the laws of the state of
Illinois, under and pursuant to which it acquired that part
of said railroad and property lying in said state of
Illinois as aforesaid, your petitioner is expressly made
liable for all the debts and obligations of said Chicago
Lake County Railway Company.
'(4)
That in each of the several deeds through which your
petitioner derived its title to said railroad and property
as aforesaid, it is provided, in substance, that the
conveyance is expressly made subject to the obligations by
said decree imposed upon the purchasers of said railroad
and property at said sale thereof by said special master
commissioner, and upon their successors and assigns.
'Copies
of each of said several deeds of conveyance which
constitute petitioner's chain of title to said railroad
and property are hereto attached.
'(5)
It is provided in said decree, under and by virtue of which
said railroad and property were sold to said Hays and
Meddaugh as aforesaid, as follows, viz.: 'It is further
ordered, adjudged, and decreed that the purchaser or
purchasers of said railroad franchises and other property
at such sale shall, as part of the consideration and in
addition to the price bid, pay and discharge any and all
receivers' indebtedness and liabilities that shall not
have been paid by the receivers, and any and all claims
heretofore filed in this cause, or that may be hereafter
filed within four calendar months from the date of entering
this decree, but only when and as the court shall allow
such claims and adjudge the same to be a lien prior to the
mortgage foreclosed in this suit; and shall pay all costs
of court, fees of clerks and masters, and any sums awarded
by the court to the parties to this suit, and their
counsel, or to the receivers in this cause; and,
furthermore, shall pay all costs and expenses involved in
and incident to the suits instituted in said Circuit Courts
of the United States for the District of Indiana and for
the Northern District of
Illinois in foreclosure of said mortgage of April 10, 1880,
and shall abide by and comply with and perform all other
orders and decrees that may be made by this court or by
said Circuit Courts of the United States for the District
of Indiana and for the Northern District of Illinois, or
either of them, in the said cases therein pending. Any such
purchaser or purchasers, and his or their successors and
assigns, shall have the right to enter his or their
appearance in this court, or any other court, and he or
they, or any of the parties to this suit, shall have the
right to contest any claim, demand, and allowance existing
at the time of the sale and then undetermined, and any
claim or demand which may arise or be presented thereafter,
which would be payable by such purchaser or purchasers, his
or their successors or assigns, or which would be
chargeable against the property purchased, in addition to
the amount bid by such purchaser or purchasers at the sale,
and may appeal from any decision relating to any such
claim, demand or allowance.'
'(6)
Your petitioner hereby admits itself to be the successor
and assigns of said Hays and Meddaugh, within the intent
and meaning of said decree, and that it is legally liable
for all the obligations imposed by said decree upon the
purchasers of said railroad and property at the sale
thereunder as aforesaid, and is amenable to all orders and
decrees of this court, of the Circuit Court of the United
States for the District of Indiana, or the Circuit Court of
the United States for the Northern District of Illinois,
that may be made in respect thereof; and it hereby submits
itself to the jurisdiction of this court and of said courts
in respect of any such orders or decrees.
'(7)
That your petitioner is desirous of securing immediate
possession of said railroad and property, and, to that end,
prays an order of the court directing the receivers to at
once turn over and deliver the same to your petitioner,
together with any money balances, credits, etc., growing
out of or connected with the operation of said railroad and
property by said receivers, that may be in their possession
and control; your petitioner hereby signifying its
willingness to accept and assume all outstanding
obligations and liabilities of said receivers, and hereby
undertaking to fully satisfy and discharge the same as they
shall from time to time, within the terms of said decree in
that behalf, be allowed and ordered paid by this court, by
the Circuit Court of the United States for the District of
Indiana, or by the Circuit Court of the United States for
the Northern District of Illinois. And your petitioner is
willing and hereby agrees to accept the full and final
accounting of said receivers, as such accounts shall be
rendered by them to petitioner,
...
