Schendel v. McGee

Decision Date17 April 1924
Docket Number253.
Citation300 F. 273
PartiesSCHENDEL v. McGEE, District Judge.
CourtU.S. Court of Appeals — Eighth Circuit

Ernest A. Michel, of Minneapolis, Minn. (Tom Davis and Robert M Haines, both of Minneapolis, Minn., on the brief), for petitioner.

F. W Root, of Minneapolis, Minn., for respondent.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

KENYON Circuit Judge.

This is an original action in this court, asking a writ of mandamus directing the respondent to reinstate upon the calendar and docket of the United States District Court of the District of Minnesota, Fourth Division, the case of A. D. Schendel Special Administrator of the Estate of Andrew J Baker, Deceased, v. Chicago, Milwaukee & St. Paul Railway Company, and to hear, try, and have the cause determined on its merits.

The circumstances giving rise to this application for writ of mandamus extend over a considerable period of time and embrace a number of court actions. For a proper understanding of the situation it is necessary to refer to some of these. This court has heretofore considered one phase of the matter in Chicago, Milwaukee & St. Paul Railway Company, Appellant, v. A. D. Schendel, as Special Administrator of the Estate of Andrew J. Baker, Deceased, reported in 292 F. 326.

On November 11, 1922, Andrew J. Baker, while in the employ of the Chicago, Milwaukee & St. Paul Railway Company as a switchman in its yards at Cedar Rapids, Iowa, died as the result of certain injuries sustained by him, alleged to be due to the negligence of the railroad company. He left surviving him his widow, Goldie Baker, and a minor adopted son. On November 28, 1922, petitioner Schendel, was appointed special administrator of the estate of Baker by the probate court of Hennepin county, Minn., and duly qualified. November 29, 1922, he commenced an action against the Chicago, Milwaukee & St. Paul Railway Company (hereafter designated as the Railway Company), in the District Court of Yellow Medicine county, Minn., to recover damages for the death of said Baker. The witnesses were largely employes of defendant, residing at Cedar Rapids, Iowa. Petitioner attempted to take the depositions of these witnesses, but the Railway Company commenced an action in the district court of Linn county, Iowa, to enjoin them from testifying, either by deposition or in person, in any action to recover damages for the death of Baker, unless the same was instituted in the district court of Linn county, Iowa, or in the United States District Court for the Northern District of Iowa, Cedar Rapids Division, and such injunction was granted. The petitioner, being unable to secure his witnesses in the case in Yellow Medicine county, Minn., dismissed the same. On or about January 30, 1923, petitioner commenced in the District Court of the United States for the District of Minnesota another action against the Railway Company, asking damages for the death of Andrew J. Baker. Defendant appeared thereto and the issues were joined March 1, 1923. On or about March 15, 1923, upon the request of petitioner, the court issued an order upon the Railway Company to show cause why it should not dismiss the proceeding in Linn county, Iowa, restraining said witnesses from testifying, and after hearing entered an order directing the Railway Company to dismiss such proceeding. After an appeal in this matter was allowed, the court entered a further order enjoining petitioner from attempting to enforce attendance or taking the depositions of the Iowa witnesses pending the determination of the appeal in this court. Petitioner moved to vacate such order, which was overruled April 26, 1923. The order of the United States District Court to the Railway Company directing it to dismiss its action in the state court was on August 28, 1923, sustained by this court. See Chicago, Milwaukee & St. Paul Railway Company v. A.D. Schendel, Special Administrator, 292 F. 326.

May 31, 1923, Joseph Wyman, a citizen of Cedar Rapids, Iowa, applied to the district court of Linn county, Iowa, for administration of the estate of Baker. Such application was granted, and the said Wyman, having qualified as administrator, applied to that court for an order permitting him to sue the Railway Company on the damage claim for the death of Baker. This authority was granted, and suit was commenced on the 5th day of June, 1923, in the district court of Linn county, Iowa. The petitioner then filed his second ancillary bill in the United States District Court of Minnesota, and procured therefrom a temporary order restraining the Railway Company and all persons acting by or under its authority from in any way interfering with, annoying, or harassing Goldie Baker, the surviving widow of Andrew J. Baker, deceased, and from settling or attempting to settle with the Iowa administrator the action pending in the United States District Court for the Fourth Division of Minnesota, arising out of the death of the said Andrew J. Baker, wherein A.D. Schendel, as special administrator of the estate of Andrew J. Baker, deceased, was plaintiff, and the Railway Company was defendant. This order was made on the 27th day of June, 1923. On September 6, 1923, respondent entered an order, on the motion of petitioner for the injunction heretofore referred to relative to the annoying and harassing of Goldie Baker and the settlement of the case, that the same be in all things denied.

After the vacation of this restraining order an application was filed in the district court of Linn county, Iowa, on October 6, 1923, for the substitution of one Toms in place of Wyman as plaintiff in the action there pending. It was granted, and Toms was duly substituted as plaintiff. On the same day the parties appeared and agreed to a trial to the court, waiving a jury. A trial was had, resulting in a finding in favor of plaintiff in the sum of $10,000 damages and costs, and judgment was rendered in favor of Toms, as administrator of the estate of Andrew J. Baker, deceased, and against the Railway Company, in the sum of $10,000 and costs. On September 27, 1923, the Railway Company notified plaintiff and his attorneys that they would move the court for an order dismissing the said cause from the calendar of the United States District Court of Minnesota, Fourth Division, and striking the same from the docket upon five specified grounds. October 11th the Railway Company notified plaintiff and his attorneys of an amendment to said motion to dismiss, adding one additional paragraph, which raised the question of the suit and judgment in Iowa. The court ordered petitioner to show cause at the courtroom of the federal court in the Federal Building in Minneapolis, Minn., on Saturday, October 13, 1923, why an order should not be made granting to the Railway Company the relief prayed in said motion.

Petitioner responded to the rule of the court of September 27, 1923, to show cause, and the supplemental rule of October 11, 1923, by alleging that the original rule and the supplemental rule were granted upon motions presenting traversable issues of fact, as to which respondent was entitled to demand proof by testimony, and to be afforded an opportunity to examine and cross-examine witnesses, and that the defendant Railway Company, having entered a general appearance and answered in said cause on March 1, 1923, was not entitled to a dismissal on a collateral question of jurisdiction, and that the motion which the plaintiff was called upon to meet, including the supplemental rule of October 11, 1923, as a matter of law, did not entitle the defendant and movant to dismissal of the cause.

There is controversy as to what occurred when the application for order to discharge the rule was presented. One of the counsel for petitioner states in affidavit that the court refused to receive a written brief in support of the application for the order. Said counsel, one R. M. Haines, further sets forth in this affidavit that he insisted that, in view of the language of the act of Congress and the decision of this court, the case should not be dismissed on motion; that the motion presented a traversable plea; that they had heard through the newspapers that the case had been settled in Iowa, and that they had sent for certified copy of the record, but had not yet received it; and that counsel stated:

'We may desire to deny the facts, or to confess and avoid. In any event, we are entitled to produce witnesses and to be given the opportunity to cross-examine witnesses for the defendant.'

The affidavit of one Goldie Baker was presented in opposition to the motion. Affidavits were also presented in favor of the motion, and after a hearing on the affidavits the court sustained the application of the Railway Company for an order dismissing the cause from the calendar of said court and striking the same from the docket on the grounds contained in the first and sixth paragraphs of said motion, which are as follows:

'(1) That such action is not properly brought within the above-named court, and that its prosecution therein and its being brought and maintained therein unjustly, unreasonably, and unduly interferes with and burdens interstate commerce by railroad between the several states.'
'(6) That upon a suit and action at law brought in the district court of Linn county in the state of Iowa, the said court being a court of general jurisdiction and a court of record, an action brought by George W. Toms as administrator of the estate of Andrew J. Baker, deceased, and against the defendant herein, with one of its employes, and which action was brought to recover damages for the alleged wrongful death of the said Andrew J. Baker, deceased, and which was brought and prosecuted upon the 'same cause of
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