Mahoning Valley Ry. Co. v. O'Hara

• Decision Date: 04 June 1912
• Docket Number: 2,204.
• Citation: 196 F. 945
• Parties: MAHONING VALLEY RY. CO. v. O'HARA.
• Court: U.S. Court of Appeals — Sixth Circuit

196 F. 945

MAHONING VALLEY RY. CO. v. O'HARA.

No. 2,204.

United States Court of Appeals, Sixth Circuit.

June 4, 1912

The defendant in error was plaintiff in the court below, and recovered against the railway company a judgment for damages from an injury received by her in alighting from the company's street car, in Youngstown, Ohio. Her story was that it was customary to stop the car in front of a certain church; that she expected and desired to alight at that point; that shortly before reaching this point the usual stop signal was given, and the car stopped; and that, as she was in the act of alighting, it started suddenly, throwing her to the pavement. It was the company's theory that the car did not stop at this point, but only at the street crossing 100 feet beyond, and that plaintiff prepared to get off, and did get off, while the car was continuously in motion.

The company brings this writ of error and alleges as error First, that the record did not sufficiently show the diverse citizenship, which was the only ground of jurisdiction second, that upon all the evidence the defendant was entitled to an instructed verdict; third, that the instructions to the jury were incorrect. The petitioner, as defendant in error here, disputes these claims, and also insists that there is no proper bill of exceptions.

Arrel Wilson, Harrington & De Ford, for plaintiff in error.

Charles Koonce, Jr., and Thomas McNamara, Jr., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

The judgment was rendered at the October, 1910, term. No order settling a bill of exceptions or providing time therefor was made at that term; but a motion for a new trial was made submitted, and its decision continued until the next term. At the next term, the motion for new trial was denied, and a time given to settle a bill, within which time, as extended, the bill was settled. It is well understood, as a primary rule, that exceptions at the trial must be reduced to form and made a part of the record during the term at which judgment is rendered (Muller v. Ehlers, 91 U.S. 249, 250, 23 L.Ed. 319); but it is also settled that the judgment is not finally entered, so as to be beyond the control of the court at a later term, until a pending motion for new trial is denied (Kingman v. Western Mfg. Co., 170 U.S. 675, 678, 18 Sup.Ct. 786, 42 L.Ed. 1192; In re McCall (C.C.A. 6) 145 F. 898, 76 C.C.A. 430). The considerations which lead to this latter result are applicable here. It would be a vain thing to settle a bill of exceptions upon a judgment still contingent; and we are clear that the court had full power over this subject during the remainder of the term at which the motion for new trial was decided. It follows that plaintiff in error is entitled to be heard upon all its assignments.

The petition shows that the defendant company is a citizen of the state of Ohio, and as to the plaintiff's citizenship makes only this allegation: 'That she is now, and at all times hereinafter mentioned was, a citizen of Ireland. ' In Rondot v. Rogers, 79 F. 676, 25 C.C.A. 145, this court, applying, as it though, the then recent decision of the Supreme Court in Stuart v. Easton, 156 U.S. 46, 15 Sup.Ct. 268, 39 L.Ed. 341, held that a description of the plaintiff as 'a resident of Ontario, Canada, and a citizen of the Dominion of Canada, and of the empire of Great Britain,' was not a sufficient averment that the plaintiff was an alien, to show jurisdiction in the Circuit Court. If the rule of Rondot v. Rogers was to be applied with apparently logical adaptation to the present case, it would be difficult to escape the conclusion that the allegation of plaintiff's citizenship is insufficient. However, we think the later decisions of the Supreme Court indicate that Rondot v. Rogers should not be extended beyond its own facts, if, indeed, it has not been substantially overruled. In Hennessey v. Richardson Drug Co., 189 U.S. 25, 34, 23 Sup.Ct. 532, 533 (47 L.Ed. 697), it is said that no averment of alienage is necessary, and that an allegation that plaintiffs were 'citizens of the republic of France,' is sufficient. In Nichols Lumber Co. v. Franson, 203 U.S. 278, 27 Sup.Ct. 102, 51 L.Ed. 181, the challenged allegation was that the plaintiff was 'a resident of (the state of) Washington, and a citizen of Sweden. ' The argument was that Sweden was, jointly with Norway, under the rule of the king of Sweden and Norway, and that plaintiff could not, in any event, be a 'citizen' of Sweden. The court said (203 U.S. 283, 27 Sup.Ct. 104, 51 L.Ed. 181):

'The allegation that the plaintiff was a resident of the state of Washington clearly shows that the designation

...