The Midland Pac. Ry. Co. v. Mcdermid

• Decision Date: 30 September 1878
• Citation: 1878 WL 10249,91 Ill. 170
• Parties: THE MIDLAND PACIFIC RAILWAY COMPANY et al.v.JOHN J. MCDERMID et al.
• Court: Illinois Supreme Court

91 Ill. 170

1878 WL 10249 (Ill.)

THE MIDLAND PACIFIC RAILWAY COMPANY et al.

v.JOHN J. MCDERMID et al.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action on the case, brought by plaintiffs, in the Superior Court of Cook county, against the defendant corporations, to recover for a loss they allege they met with from making advances in their business, as commission merchants, upon bills of lading issued in the name of the Midland Pacific Railway Company in such form that they would be and were taken to be full or average car loads of wheat containing the usual number of pounds or bushels, when, in truth and in fact, they fell very far short of such average. The return of the sheriff, upon the summons issued, is as follows: “Served this writ on the within named, the Midland Pacific Railway Company, by reading the same and delivering a copy thereof to J. N. Converse, general superintendent of said company, the 26th day of January, A. D. 1876, the president of said company not found in my county. Also served this writ on the within named, the Nebraska Railway Company, by reading the same and delivering a copy thereof to J. N. Converse, general superintendent of said company, the 26th day of January, A. D. 1876, the president of said company not found in my county.”

Separate pleas in abatement to the jurisdiction of the court were filed by each defendant. In the plea filed by the Midland Pacific Railway Company, it is averred that company was “a corporation aggregate, existing and doing business under and by virtue of the laws of the State of Nebraska, and not elsewhere, with its principal office in the city of Lincoln, county of Lancaster, and State of Nebraska, and that, at the time of the commencement of said suit and service of summons on John N. Converse, the alleged general superintendent of the said Midland Pacific Railway Company, said Converse was not the general superintendent of the said Midland Pacific Railway Company, and was not at that time in the State of Illinois on business of defendant, * * * but was temporarily in said Cook county and passing through the same to his home and residence * * * in the State of Nebraska.”

The plea filed by the Nebraska Railway Company was, in substance, the same as that filed by its co-defendant, except it contained no averment Converse was not its general superintendent, but it did contain an additional averment, “it had no property of any kind or nature whatsoever in the State of Illinois.”

To these pleas a demurrer was sustained, but, before final judgment was rendered, defendants asked leave of the court to amend their respective pleas by the insertion in each of them of the following: “That at and prior to the commencement of this suit, the defendants were respectively corporations existing and doing business under and by virtue of the laws of the State of Nebraska, and did not at that time exist or do business or have any property or offices or any agent or agents of any kind or nature whatsoever in the State of Illinois.” But the motion was denied, and that decision, together with the decision of the court sustaining the demurrer to the pleas as first filed, are among the errors assigned. On sustaining the demurrer to the separate pleas of defendants, the court assessed plaintiffs' damages and rendered final judgment for the same, and defendants bring the cause to this court on appeal.

Messrs. SMALL & MOORE, for the appellants.

Messrs. DENT & BLACK, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Leave was asked by defendants before final judgment to amend their pleas. Under our statute, as construed by the former decisions of this court, the leave asked might, with great propriety, have been granted. Humphrey v....