The Union Pac. R.R. Co. v. Miller

• Decision Date: 30 September 1877
• Parties: THE UNION PACIFIC RAILROAD COMPANYv.WILLIAM MILLER et al.
• Court: Illinois Supreme Court

87 Ill. 45

1877 WL 9797 (Ill.)

THE UNION PACIFIC RAILROAD COMPANY

v.WILLIAM MILLER et al.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. B. C. COOK, for the appellants.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was indebitatus assumpsit, in the Whiteside circuit court, on the common counts, brought by William Miller and William L. Patterson, as co-partners, plaintiffs, and against the Union Pacific Railroad Company, defendants. The summons was returned by the sheriff that he had duly served the writ upon the Union Pacific Railroad Company, by delivering a true copy thereof to Olon P. Baker, agent for the within named company, and at the same time made known to him its contents, by reading the same to him; and further, returns that the president of the company was not within his county.

A declaration containing six counts was filed. The defendants pleaded, in substance, “that the defendant was a corporation created by act of Congress to construct a railroad from the Missouri river to the eastern boundary of California; that it had its principal office in the State of Nebraska, and not in the State of Illinois; that it did not operate its road in the county of Whiteside or State of Illinois; that said alleged causes of action did not accrue in the county of Whiteside or in the State of Illinois; that said company did not reside in, and was not found in, the county of Whiteside or State of Illinois, and was not doing business in said county or State, and was not served with process in said county or State; that said company has no principal or other office in the county of Whiteside or in the State of Illinois; and that Olon P. Baker, upon whom summons was served, was not the agent of defendant, as set forth in the sheriff's return.

To this plea the plaintiffs replied, taking issue upon the averment that Baker was not the agent of defendants, and alleging he was such agent at the time of the service of the summons.

The facts in regard to the agency as alleged, were agreed upon in writing, and filed, and the issue was submitted to the court for trial, upon those stipulated facts. This was at the December term, 1875.

After argument upon these facts, so stipulated, the cause was taken under advisement until the March term, 1876, when the issue was found for the plaintiffs, and the cause continued to the June term following; and when the cause was reached on calling the docket, on motion of the plaintiffs' attorney the court rendered a judgment upon the finding of the March term, as follows:

“This day come the said plaintiffs, by Wallace & Eustace, their attorneys, and, on motion, it is ordered that said plaintiffs have judgment against said defendant, on the finding of the court herein at the last term hereof. Wherefore, the said plaintiffs ought to have and recover of the said defendants their damages sustained herein, by reason of the premises. Whereupon, reference was had to the court to assess the plaintiffs' damages herein, and the court, after hearing the allegations and proofs submitted herein by the said plaintiffs, and being fully advised in the premises, assesses said plaintiffs' damages herein against said defendants to the sum of $100,000. Therefore, it is considered by the court that said plaintiffs do have and recover of and from the said defendants their said damages of $100,000, in form as aforesaid by the court assessed, together with all their costs and damages in and about this suit expended, and that they have execution therefor.”

At the same term, a motion was made by defen...