Southern Ry. Co. v. Simon

• Decision Date: 25 November 1910
• Docket Number: 13,300.
• Citation: 184 F. 959
• Parties: SOUTHERN RY. CO. v. SIMON.
• Court: U.S. District Court — Eastern District of Louisiana

184 F. 959

SOUTHERN RY. CO. v. SIMON.

No. 13,300.

United States Circuit Court, E.D. Louisiana.

November 25, 1910

Harry H. Hall, for plaintiff.

Henry L. Lazarus, for defendant.

FOSTER District Judge.

In this case complainant, the Southern Railway Company, seeks an injunction to restrain the defendant, Ephraim Simon, from executing a certain judgment of the civil district court on the ground that said judgment is null and void for want of citation. A demurrer attacking the jurisdiction of this court to issue the injunction was overruled by my predecessor, Hon Charles Parlange, and the jurisdiction of this court was also maintained by my predecessor, Hon. Eugene D. Saunders. See also, Ex parte Simon, 208 U.S. 144, 28 Sup.Ct. 238, 52 L.Ed 429. From a careful consideration of the law as I understand it, I agree with them, and cannot add to the reasons they assign.

The defendant, Ephraim Simon, was injured while a passenger on one of the complainant's trains in Alabama. Thereafter he filed suit against the complainant in the civil district court for the parish of Orleans, La., alleging complainant to be a foreign corporation doing business in Louisiana; that it had not appointed an agent to receive service of citation and therefore service should be made upon the Secretary of State, in accordance with the law of Louisiana (Act No. 54 of 1904). Judgment was obtained in his favor and against the Southern Railway Company in the sum of $13,348. After this judgment had become final, complainant filed its bill in this court, alleging the service upon the Secretary of State to be null and void, and the judgment against it rendered without due process of law, in violation of the Constitution of the United States; that the demand of complainant in said suit was unconscionable, and was obtained by fraudulent and false testimony; that the claim consisted in part of remote and consequential damages, not recoverable; that complainant had no knowledge of the pendency of proceedings until after the rendition of the judgment; and that it had a good and valid defense to the action. Issue was finally joined, and the matter was referred to a master, who in due course filed his report. The defendant has excepted to the master's report, as a whole and specially, both as to his conclusions of law and the findings of fact.

It is contended by complainant that defendant, by not having objected to the taking of evidence before the master, has consented to his appointment, and is now estopped to controvert his findings of fact. I do not agree with this contention. The court could not, except by consent of all parties, abdicate its duty to determine, by its own judgment, the facts and the law applicable to them. The report of the master is merely advisory to the court, and, while entitled to great weight on findings of fact deduced from conflicting testimony, where the master has had opportunity to form his own opinion as to the truthfulness of the witnesses, the court may weigh the evidence and find its own facts, and, indeed, it is the court's duty to do so whenever either side excepts to the report of the master. In this case I consider the entire matter is before me for decision.

It is evident that the first question to be considered is that of citation.

Act No. 54 of 1904, relied upon by the defendant, Ephraim Simon, is as follows:

'Section 1. Be it enacted by the General Assembly of the state of Louisiana, that it shall be the duty of every foreign corporation doing any business in this state to file in the office of the Secretary of State a written declaration, setting forth and containing the place or locality of its domicile, the place or places in the state where it is doing business, and the name of its agent or agents or other officer in this state upon whom process may be served.

'Sec. 2. Be it further enacted, etc., that whenever any such corporation shall do any business of any nature in this state without having complied with the requirements of section 1 of this act, it may be sued for any legal cause of action in any parish of the state, where it may do business, and such

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