Phillips v. Davis

• Decision Date: 27 February 1925
• Citation: 251 Mass. 263,147 N.E. 96
• Parties: PHILLIPS et al. v. DAVIS, Agent.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 263

147 N.E. 96

PHILLIPS et al.

v.DAVIS, Agent.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 27, 1925.

Exceptions from Superior Court, Bristol County; Henry T. Lummus, Judge.

Action by Louis Phillips and others against the New York, New Haven & Hartford Railroad Company, wherein Walker D. Hines and James C. Davis, as the Director General of Railroads, were successively substituted as parties defendant. On defendant's exception to denial of his motion to dismiss and after trial on merits. Exceptions overruled.H. W. Radovsky, of Fall River (D. R. Radovsky, of Fall River, on the brief), for plaintiffs.

A. W. Blackman, of Boston, for defendant.

RUGG, C. J.

This action of contract was begun by a writ returnable to a district court, dated November 29, 1919. The New York, New Haven & Hartford Railroad Company was named as defendant. The cause of action set forth in the declaration was a failure to transport merchandise from Brooklyn to Fall river on or about July 3, 1919. That was at a time when it is conceded that the railroad was under federal control pursuant to acts of Congress and a proclamation of the President. On March 15, 1920, the plaintiffs filed in court a motion to substitute Walker D. Hines as Director General of Railroads in place of the corporation originally named as defendant. That motion was allowed by the court on April 22, 1920. At the time the action was brought, Walker D. Hines was Director General of Railroads. 40 U. S. Stats, at Large, 1922; 41 U. S. Stats. at Large, 1788. He was designated as Agent under the ‘Transportation Act of 1920’ (U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 et seq.) on March 11, 1920 (41 U. S. Stats, at Large, 1789), and continued to act until May 18, 1920, when he was replaced by John Barton Payne (41 U. S. Stats. at Large, 1793, 1794). Therefore, at the time this action was brought and until after the allowance of the amendment substituting his name as defendant, he was the proper person to be the defendant in such an action.

[1][2] The allowance of the amendment substituting Walker D. Hines, Director General of Railroads, as defendant, in place of the railroad company, originally named as defendant, of course did not bring him in as a party. The issuance and service of due process to bring him into court would have been necessary to make him a defendant in invitum. Cohen v. Levy, 221 Mass. 336, 108 N. E. 1074. But it would not be necessary to issue process provided he appeared voluntarily. What happened was this: The counsel of record for the original defendant filed in court a paper signed by him, in these words:

‘The clerk will enter my appearance specially for said Walker D. Hines for the purpose of contesting the jurisdiction.’

This was filed on June 20, 1921, at the time when the case was tried in the district court. This was equivalent to a waiver of the issuance of process to bring the new defendant into court. It was a voluntary appearance for the purpose of contesting jurisdiction. It had the same force and effect as the due issuance and service of process upon Mr. Hines to bring him into court and a special appearance by him to contest the jurisdiction. It would have been a vain form to have appeared for any other purpose when no process whatever had issued against him. No such contention has been argued.

The question, whether the Director General of Railroads could in law be substituted by an amendment for a railroad corporation originally named as defendant, was then open to doubt. It was first decided in this commonwealth a year later in AEtna Mills v. Director General of Railroads, 242 Mass. 255, 136 N. E. 380. The only reason suggested now by counsel, why he should have appeared specially, is that the Director General or Agent could not be brought in by amendment. That question has been decided against his contention, so far as it is within our province to decide it, by numerous decisions. We understand that in such a matter the state practice is to be followed. Weiss v. Davis, Director General of Railroads, 250 Mass. 12, 144 N. E. 765, and cases there collected.

The motion to dismiss for want of jurisdiction was rightly disallowed in the district court. The special appearance had no other effect, than to enable Mr. Hines to raise the questions here argued. That being rightly overruled, his participation in the trial on the merits in the district court protected his every right. Rollins v. Bay View Auto Parts, 239 Mass. 414, 132 N. E. 177.

In the meantime, after the allowance of the amendment substituting Mr. Hines as defendant, John Barton Payne had succeeded him as agent (41 U. S. Stats. at Large, 1793, 1794), and he in turn had been replaced on March 26, 1921, by James C. Davis (42 U. S. Stats. at Large, 2237). When the case came on for trial in the district court on June 20, 1921, the attorney who had appeared cross-examined the witnesses called by the plaintiffs. Judgment was rendered against Mr. Hines on June 24, 1921. He appealed from this judgment and that appeal was entered in the superior court on the first Monday of July, 1921, by counsel who appeared specially for the purpose of contesting jurisdiction.

[3] The special appearance in behalf of Mr. Hines was carefully limited to a contest of the jurisdiction of the court over him. The extent of that contest reached only to the power of the court to allow an amendment substituting him for the original defendant. In this connection the circumstance that after the allowance of that amendment but before the special appearance and the trial on the merits in the district court, Mr. Hines had gone out of office and been succeeded by another, did not affect the jurisdiction of the court over him; it merely affected the kind of judgment which the court ought to enter. The court had jurisdiction both of the cause of action and of the parties. Lonergan v. American Express Co., 250 Mass. 30, 144 N. E. 756. The proper way to raise the question of his nonliability by reason of having gone out of office was by plea in abatement or some other proper pleading setting forth the facts.

[4] When the case came on for trial in the superior court in March, 1923, counsel stated to the court that he desired it to be noted that he appeared specially for Mr. Hines for the purpose of contesting jurisdiction, and that Mr. Hines was in no respect a representative of the United States railroad administration. The court thereupon ruled that ‘counsel was in court representing Mr. Hines generally and not specially in view of the fact that a trial was had in the district court, at which time said counsel was present and took part in the trial.’ No exception was taken to this ruling. Whatever may be said as to the correctness of that ruling (Cheshire National Bank v. Jaynes, 224 Mass. 14, 112 N. E. 500), it is not open now for review. Since no exception was taken, it became the law of the case. The defendant cannot now complain of it. Commonwealth v. Coughlin, 182 Mass. 558, 563, 66 N. E. 207;Boyd v. Taylor, 207 Mass. 335, 93 N. E. 589;United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 337, 132 N. E. 56.

When in March, 1923, the case came on for trial on the merits in the superior court, motion was made to substitute for Mr. Hines as defendant, ‘James C. Davis, Agent and Director General of Railroads, successor...