N. Pac. R. Co. v. McMullen

• Decision Date: 17 October 1893
• Citation: 86 Wis. 501,56 N.W. 629
• Parties: NORTHERN PAC. R. CO. v. MCMULLEN. NORTHERN PAC. R. CO. v. SEIPP.
• Court: Wisconsin Supreme Court

86 Wis. 501

56 N.W. 629

NORTHERN PAC. R. CO.

v.MCMULLEN.

NORTHERN PAC. R. CO.

v.SEIPP.

Supreme Court of Wisconsin.

Oct. 17, 1893.

Error to Waukesha county court; Thomas C. Martin, Judge.

Action by Mary McMullen, administratrix, etc., of Daniel McMullen, deceased, against the Northern Pacific Railroad Company, for the death of decedent; and another action, by Mary Seipp, administratrix, etc., of Peter Seipp, deceased, against the same defendant. There was a verdict in plaintiff's favor in each action, and defendant brings error. Reversed.D. S. Wegg and T. H. Gill, for plaintiff in error.

Ryan & Merton, for defendants in error.

ORTON, J.

These two cases were, by stipulation, tried together, and before the same jury, with separate verdicts and judgments, and the proceedings for their removal to the circuit court of the United States were upon like records and papers, and were presented to this court upon the same record and assignments of error, and therefore there will be but one opinion for both cases.

These two actions are brought by the administratrix of the estate of each intestate to recover the statutory damages for his killing by the negligence of the defendant company, on its railway, on the night of April 9, 1891, near the village of Waukesha. Daniel McMullen, deceased, one of said intestates, was the engineer, and Peter Seipp, deceased, the other of said intestates, was a brakeman, on the same train, and both came to their deaths by the same accident, and by the same negligence of the company. The facts, as disclosed by the testimony, need not be further stated. The trials resulted in a judgment in favor of Mary McMullen, administratrix, for the sum of $5,358.23, and in favor of Mary Seipp, administratrix, for the sum of $5,084.30. The defendant company has brought both of these cases to this court by writs of error.

The first and the most important error assigned by the plaintiff in error is the want of jurisdiction in the county court of the county of Waukesha to try and determine these causes, by reason of their removal to the circuit court of the United States for the eastern district of Wisconsin, and of that court having entertained jurisdiction thereof, according to the laws of the United States in such cases made and provided. All the facts in respect to the applications for such removal may not be necessary to the decision of this question, but inasmuch as the county court denied such applications by the plaintiff in error, and proceeded, notwithstanding, to the trial of these causes, in justice to that court, all the facts will be substantially stated, as follows: The summons and complaint were served on the 27th day of July, 1891, and the time within which the defendant must plead, answer, or demur would expire on the 17th day of August, 1891, the 16th falling upon Sunday. The defendant, being a corporation organized and created under and by virtue of an act of the congress of the United States, was entitled to a removal of said cause for trial from said county court to the circuit court of the United States for the eastern district of Wisconsin, damages claimed in each case being $5,000; and on the 15th day of August, 1891, the defendant's attorneys prepared its petition in due form for such removal therein, accompanied by a bond in proper form, conditioned as required by law, and a notice to the plaintiff's attorneys that an application would thereon be made to said court for an order removing said cause, and on the 25th day of August following filed the same in the clerk's office. By a clerical error in the preparation of said petition, the venue was laid in the circuit court for said Waukesha county, instead of in the county court; and when it was filed, no other papers in the action having been filed by the plaintiff, the clerk indorsed the same as filed in the circuit court; said clerk being by law clerk of both courts, and keeping the records of both courts in his office. Before the same were filed, however, copies of the petition, bond, and notice of motion for removal order were personally served upon the plaintiff's attorneys, and their admission indorsed thereon. On the 25th of August, the said clerical error having been discovered, an order was issued by said county court, returnable at 2 o'clock in the afternoon of said day, requiring the plaintiff to show cause why the word “circuit,” in said petition, should not be changed to the word “county,” and such clerical error disregarded, so that the said petition might stand as properly entitled in said action. At the return hour of said order, the plaintiff's attorneys appeared specially with the objection that such order to show cause was irregular and informal, and, after argument, another order to show cause, based on an affidavit to the same effect, was issued, returnable on the 29th day of August, 1891, and served on the plaintiff's attorneys. Upon the hearing of this order, further affidavits were filed showing that the error in venue was a pure mistake. After argument by the respective counsel, the county court of Waukesha county ordered that, it satisfactorily appearing to the court that the only action then pending in any court between the above-named parties is such action pending in the county court, and that there is no such action pending in the circuit court, and being satisfied that the mistake was simply a clerical error, it was adjudged that the word “circuit,” in said removal papers, be changed to read “county,” so that the said removal papers should show that they were properly entitled in said action. By consent of the parties, the argument on the motion for the order removing the cause, pursuant to said petition and bond, was taken up on the 5th day of September following, and after a hearing such motion was denied, for the reason that the application for removal was not made within the time required by the statutes, and costs were awarded to plaintiff. The defendant, however, procured a certified copy of the record in such case, notwithstanding the refusal of the county court to order the removal, and upon the 5th day of October, 1891, being the first day of the next term of the federal court for the eastern district of Wisconsin succeeding the application for the removal from the county court, presented the same to such federal court; and, after full statement of facts and investigation, the same were therein docketed. An order was also entered in said federal court extending the time to plead, and copies of both such orders served upon plaintiff's attorneys, they not appearing. Thereafter, the plaintiff's attorneys served notice of application to said county court of Waukesha county on the 19th day of November, 1891, for judgment by default against the defendant; and on that day the defendant appeared by its attorneys specially, and objected to the jurisdiction of said county court, for the reason that the said cause had been properly removed therefrom, and filed a certified copy of the order docketing said cause in the federal court. The county court, however, overruled the objection; and, to prevent judgment by default, defendant, upon terms, obtained leave to answer in said action, and duly filed and served its answer herein. The...