Hill v. Davis
| Decision Date | 29 November 1923 |
| Docket Number | (No. 22.) |
| Citation | 257 S.W. 340 |
| Parties | HILL v. DAVIS, Agent. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; James P. Alexander, Judge.
Action by Mrs. Alda Hill against James C. Davis, Agent. Judgment for plaintiff, and defendant appeals. From an order granting a plea in abatement and dismissing the cause, plaintiff appeals. Reversed and remanded.
Tom Hamilton and J. A. Kibler, both of Waco, for appellant.
Sanford & Harris, of Waco, for appellee.
This cause is presented as an agreed case under article 2112 of the Revised Statutes. In August, 1919, appellant filed suit against Mr. Hines, Director General of Railroads, for $40,000 damages. Mr. Payne was later substituted as Agent, and on November 18, 1920, the cause was tried in the district court, resulting in a judgment in favor of appellant for $12,500, which was appealed, and which was on June 7, 1922, reversed and remanded.
On March 28, 1921, while the cause was pending in the Court of Civil Appeals, Mr. Payne resigned, and James C. Davis was appointed Agent for the United States government. The cause remained in the appellate court for more than a year after Mr. Davis was appointed. On November 7, 1922, in the district court of McLennan county, on motion of appellant before the case was called for trial, Mr. Davis as Agent was substituted as defendant in place of Mr. Payne.
Mr. Davis as Agent filed a plea in abatement to the effect that he had been appointed agent on March 28, 1921, and had not been substituted as a defendant in this cause within one year from that time, and that by reason thereof the cause should be abated and dismissed. The court granted the plea in abatement and dismissed the cause, and the question for review is: Did the court commit error in dismissing the cause?
Appellee's contention is that by reason of the act of Congress of February 8, 1899, being section 1594, U. S. Comp. St. Ann., this suit being against an officer of the United States government, it was necessary for Mr. Davis as Agent to have been made the party defendant within one year after his appointment as such. Said act of Congress is as follows:
"No suit, action, or other proceeding lawfully commenced by or against the head of any department or bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against his successor in office, and the court may make such order as shall be equitable for the payment of costs."
At the time the above statute was passed by Congress, all suits against federal officers had to be brought in the federal court, and under the rules of the federal courts new parties can be made, and are required to be made, where either party plaintiff or defendant dies, or has been succeeded in his official capacity, while the cause is pending on appeal in either the Circuit or Supreme Court of the United States, by giving the notices and complying with the requirements of the federal statutes and rules.
The above act of Congress was passed at the suggestion of the United States Supreme Court in 1899, in order to prevent suits from abating because there was no provision made prior to said time for the substitution of officers of the United States government in their official capacity in suits that were pending at the time a change was made in said official positions. The Supreme Court of the United States, since said act was passed, has uniformly held that where the official has been changed that the new official must be made a party to the suit or it will abate and be dismissed. LeCrone v. McAdoo, 253 U. S. 217, 40 Sup. Ct. 510, 64 L. Ed. 869; Industrial Accident Commission of the State of Cal. v. Payne, 42 Sup. Ct. 269, and 271; Dahn v. Davis, 258 U. S. 421, 42 Sup. Ct. 320, 66 L. Ed. 696; Payne v. Stevens, 43 Sup. Ct. 165, 67 L. Ed. ___; Payne v. Industrial Board of Illinois, 258 U. S. 613, 42 Sup. Ct. 462, 66 L. Ed. 790; U. S. Ry. Administration v. Slatinka, 43 Sup. Ct. 247, 67 L. Ed. ___.
In all of the above cases, however, except that of LeCrone v. McAdoo, the federal Agent was attempting to appeal from adverse judgments of the state courts to the Supreme Court of the United States, and unless the new Agent made himself a party, the Supreme Court dismissed the appeals for said reason, without writing any opinions. The LeCrone v. McAdoo Case was brought against Mr. McAdoo as Secretary of the Treasury, and the Federal Control Act of Railroads was not in any way involved, and the writ of error was dismissed because the new Secretary of the Treasury had not been made a party.
On December 26, 1917 (U. S. Comp. St. § 1974A) the President took control of all the railroad systems under the act of Congress, and appointed Mr. McAdoo Director General of Railroads. The President's proclamation provides:
By general order issued by the Director General it was provided that all suits for claims originating during federal control should be brought against the Director General of Railroads appointed by the President. On March 21, 1918, Congress passed the Federal Control Act, and section 10 thereof provides:
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Davis v. Hill
...in abatement was sustained, from which action of the trial court the case was again appealed, and reversed and remanded. Hill v. Davis (Tex. Civ. App.) 257 S. W. 340. Upon another trial, judgment was rendered in favor of appellee Alda Hill for $6,500, but against the father and mother, J. D......
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Davis v. Hill
...and the action of the trial court in sustaining said plea in abatement was reversed and the cause remanded for another trial. (Tex. Civ. App.) 257 S. W. 340. Upon the last trial the case was submitted to the jury upon special issues, which special issues and the answers of the jury are as "......
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Kilgore v. Hines
...have been sustained. In that case we approved the holding of the Court of Civil Appeals for the Tenth District in the case of Hill v. Davis, 257 S. W. 340. The second ground urged in defendant Davis' motion to dismiss the case, that said cause of action was barred by the two years' statute ......
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Davis v. Stamford Mill & Elevator Co
...interest, interest is recoverable. To hold otherwise would deny the constitutional right of due process of law. Hill v. Davis, Agent (Tex. Civ. App.) 257 S. W. 340. All assignments are overruled, and the judgment is ...