The Eel River Railroad Co. v. State ex rel. Kistler

• Citation: 57 N.E. 388,155 Ind. 433
• Decision Date: 18 May 1900
• Docket Number: 18,397
• Parties: The Eel River Railroad Company et al. v. The State, ex rel. Kistler, Prosecuting Attorney, etc
• Court: Supreme Court of Indiana

57 N.E. 388

155 Ind. 433

The Eel River Railroad Company et al. v. The State, ex rel. Kistler, Prosecuting Attorney, etc

No. 18,397

Supreme Court of Indiana

May 18, 1900

Rehearing Denied Nov. 23, 1900.

From the Howard Superior Court.

Affirmed.

W. V Stuart, C. B. Stuart, E. P. Hammond, D. W. Simms, Henry Crawford, W. R. Crawford, J. C. Blacklidge, C. C. Shirley and W. H. Blodgett, for appellants.

W. L Taylor, Attorney-General, W. A. Ketcham, G. S. Kistler, M. Winfield, M. Bell, W. C. Purdum, S. T. McConnell, A. G. Jenkines and G. C. Taber, for State.

OPINION

Dowling, J.

This was a proceeding by information, in the nature of a quo warranto, filed in the Cass Circuit Court, by the prosecuting attorney of Cass county, against the Eel River Railroad Company, a domestic corporation, charging it with doing and omitting acts amounting to a surrender and forfeiture of its rights and privileges as a corporation, and demanding a judicial declaration of such surrender and forfeiture.

The Wabash Railroad Company, as the lessee of the railroad and property of the Eel River Railroad Company, and a participant in the alleged wrongful acts and omissions of the Eel River Railroad Company, was properly joined as a codefendant with that company. § 269 Burns 1894; Bittinger v. Bell, 65 Ind. 445.

On a former appeal, by the defendants below, the judgment of the Fulton Circuit Court, to which the cause had been transferred upon a change of venue asked for by the defendants, was reversed, for the reason that the Cass Circuit Court, in which the suit was originally brought, had not obtained jurisdiction of the person of the Eel River Railroad Company. An attempt to bring the Eel River Railroad Company within the jurisdiction of the Cass Circuit Court had been made by issuing two writs of summons to the sheriff of said Cass county, requiring the said Company to appear to said action and to plead to the information therein on June 7, 1893, and causing the same to be served on the said company by reading to its secretary in the state of Massachusetts, and to one of its directors in the state of Michigan. On such former appeal, it was held by this court that the service of the writs, so made out of this State, was illegal, for the reason that the Eel River Railroad Company was organized under the laws of this State, and was therefore a resident of the State, and could not migrate. Eel River R. Co. v. State, ex rel., 143 Ind. 231, 42 N.E. 617.

The mandate of this court was that the judgment of the Fulton Circuit Court be reversed, that the said court remand the cause to the Cass Circuit Court, and that the last named court sustain the motion of the Eel River Railroad Company to set aside the service of process. Subsequently, on the 12th day of February, 1896, an alias summons for the Eel River Railroad Company was issued to the sheriff of Cass county, and was returned not served, because that corporation was not found in Cass county, and had no officer or person authorized to transact its business residing in that county upon whom process could be served. Similar writs were issued on the same day, February 12, 1896, to the sheriffs of the counties of Miami, Wabash, Kosciusko, Whitley, Allen, Noble, and DeKalb, respectively, these being all of the counties in which and through which the railroad of the said Eel River Railroad Company was constructed; and to each of these writs a like return of "Not found," etc., was made.

An order for notice to the Eel River Railroad Company, by publication, under section one of an act approved December 21, 1858 (Acts 1858, p. 42) was next taken by the plaintiff below. The Eel River Railroad Company thereupon entered a special appearance to the action, and moved to set aside the order of publication, on the ground, among others, shown by affidavit filed on behalf of the said company in support of its motion, that, prior to February 12, 1896, and ever since that date, one William V. Troutman, a citizen of the State of Indiana, residing at Butler, in DeKalb county, Indiana, was, and had been, and then remained the regularly appointed and constituted general agent of the Eel River Railroad Company, upon whom any process issued against it could be served, and with like effect as if the service had been on the president or directors of said company. An alias summons for the Eel River Railroad Company was then issued to the sheriff of DeKalb county, who made return thereto, showing that he had served the same on the said Eel River Railroad Company by reading it to William V. Troutman, the general agent of the said company, there being no chief officer, or other higher officer of the said corporation found in said DeKalb county, and by delivering to the said Troutman, as such general agent, a copy of the writ.

The motion of the Eel River Railroad Company to strike out the order for publication was overruled, and proof of publication of a notice to that company to appear to and answer the information was duly made.

An amended information having been filed by the plaintiff below, the Eel River Railroad Company filed its answer in abatement, properly verified, denying the jurisdiction of the Cass Circuit Court over its person. To this plea, the plaintiff below replied in two paragraphs, the first being special in its character, and the second a denial of the matters stated in the plea.

At this stage of the proceedings, the Wabash Railroad Company also filed an answer in abatement. Upon the application of the Eel River Railroad Company, the venue was changed to Howard county, and the cause was transferred to the Howard Circuit Court.

On motion of the plaintiff below, the answer of the Wabash Railroad Company in abatement, was stricken from the files, for the reason that it was filed too late, and after divers steps in the cause taken by that defendant.

A demurrer to the first paragraph of the reply to the answer of the Eel River Railroad Company in abatement was filed, but the record fails to show what disposition was made of it. We must presume that it was overruled.

The issues upon the plea in abatement filed by the Eel River Railroad Company were submitted to a jury for trial, and, at the request of both the parties, the jury were directed to return a special verdict in the form of answers to interrogatories framed under the direction of the court.

On the return of the special verdict, the Eel River Railroad Company moved for judgment in its favor, and its motion was overruled. A motion by the Eel River Railroad Company for a new trial was also made and overruled. Judgment was thereupon entered in favor of the plaintiff upon the issues tried. At this point, the cause was, for some reason not disclosed by the record, but without objection by any of the parties, transferred to the Howard Superior Court.

After the removal of the cause to the Howard Superior Court, a motion was made by the Eel River Railroad Company to dismiss the action for the want of a proper relator. Pending this motion, George S. Kistler, who had been reelected prosecuting attorney for the judicial circuit composed of the county of Cass, was substituted as the relator, and the motion to dismiss was overruled.

Each defendant filed a demurrer to the amended information, and these demurrers were overruled.

The Eel River Railroad Company answered in four paragraphs, and the Wabash Railroad Company filed its separate answer. The record fails to show that any reply was filed to the answer of either defendant.

The cause was tried by a jury and a general verdict was returned for appellee, with answers to numerous interrogatories filed by the parties respectively. A motion by the appellants for an order requiring the jury to answer the fifteenth and sixteenth interrogatories was overruled. Separate motions by the appellants for a new trial and for judgment on the answers to the interrogatories were made and overruled. Motions by the Eel River Railroad Company for a venire de novo, and in arrest, were overruled.

Appellee moved for the appointment of a receiver, and the motion was sustained.

Judgment was rendered upon the verdict that the franchises of the Eel River Railroad Company be, and that the same were, forever forfeited and annulled; that the Wabash Railroad Company was unlawfully in the possession of the corporate property of the Eel River Railroad Company, and that it was unlawfully exercising the franchises of that company; that the Eel River Railroad Company and the Wabash Railroad Company, and each of them, be ousted and excluded from the said Eel River Railroad, its powers, franchises, property, and corporate rights, and from the possession and enjoyment of the same; and that the Eel River Railroad Company be dissolved.

It was further adjudged that a receiver be appointed to take possession of the said Eel River Railroad Company, its railroad, property, and franchises, to receive the assets of the said company, and to sell and dispose of the same under the orders of the court, and in accordance with the law in such cases. A receiver was appointed by the court, and the person so appointed gave bond and qualified. The judgment defined the specific powers and duties of the receiver. He was authorized to seize and take possession of all the property of the Eel River Railroad Company including its railroad, rolling-stock, books, papers, etc., and to hold the same subject to the further orders of the court. He was empowered to bring all necessary suits in his own name as such receiver for the recovery of the property, assets, rights, and franchises of the Eel River Railroad Company, and for the preservation of the same, and the Eel River Railroad Company and the Wabash Railroad Company were ordered to deliver to...