Trester v. Missouri Pac. R. Co.

• Decision Date: 25 January 1888
• Citation: 36 N.W. 502,23 Neb. 242
• Parties: MILTON L. TRESTER, PLAINTIFF IN ERROR, v. THE MISSOURI PACIFIC RAILWAY COMPANY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

36 N.W. 502

23 Neb. 242

MILTON L. TRESTER, PLAINTIFF IN ERROR, v. THE MISSOURI PACIFIC RAILWAY COMPANY, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 25, 1888

ERROR to the district court for Lancaster county. Tried below before MORRIS, J.

REVERSED AND REMANDED.

Lamb Ricketts, & Wilson, for plaintiff in error, cited: Miller v. Finn, 1 Neb. 254. In re Cooper, 93 N.Y. 507. Bank v. St. John, 25 Ala. 566. Bigelow Estoppel 578-582. C. & N. W. R. R. v. Auditor, 53 Mich. 81 O. & M. R. R. Co. v. Wheeler, 1 Black, 286. Muller v. Dows, 94 U.S. 444.

A. R. Talbot and B. P. Waggener, for defendant in error, cited: Brown v. Hurst, 3 Neb. 356. Whiteley v. Davis, 20 Neb. 504. Sherman v. Bates, 15 Id., 18.

OPINION

REESE, CH. J.

It appears by the record in this case that in the year 1885 defendant in error filed in the office of the county judge of Lancaster county a request for commissioners to appraise the damages to certain lands caused by the location of its railroad thereon. This request was in the following form:

"In the county court, Lancaster county, Nebraska.

"In the matter of the right of way and depot grounds of the Missouri Pacific Railway Company. Request for commissioners to appraise damages.

"To Charles M. Parker, county judge:

"The Missouri Pacific Railway Company shows to your honor that it has located its line over and through the grounds hereinafter described, and has located its switch yards and depots on the grounds hereinafter set forth and described, and that the appropriation of said lands to such uses is necessary to the construction and operation of said railroad, and that said company has endeavored to obtain the consent of the several owners and agree with them on such damages so occasioned to them by such appropriation, but has been unable to make any personal agreement, and petitioner has given to non-resident owners notice by publication as required by law herewith filed, and has given personal notices to resident owners, to-wit: N. 1/2 S.E. 1/4 of N. E. 1/4 section 24, Tp. 10, R. 6 E., 100 ft. wide and through the same. M. L. Trester, owner. And said railway company prays appraisement of damages by commissioners which owners shall sustain by reason of the appropriation of such lands to the uses of the Missouri Pacific Railway Company."

In accordance with this request, the county judge appointed appraisers to assess the damages sustained by plaintiff in error and others by reason of the location of the railroad. After qualifying in the mode prescribed by law, the appraisers assessed the damages sustained by plaintiff in error at $ 2,500, from which he appealed to the district court. After the cause was filed and docketed in the district court, defendant in error appeared and filed its petition in the usual form for a removal of the case to the circuit court of the United States for the district of Nebraska. Among other things, it was alleged in the petition that the petitioner, the Missouri Pacific Railway Company, was a corporation "organized under the laws of the state of Missouri," and that it was "a citizen and resident of the state of Missouri, being a corporation under the laws of the state of Missouri, and having its principal office at St. Louis, Missouri, and the owner of the land, Milton L. Trester, was and is a citizen and resident of the state of Nebraska."

This petition is supported by the affidavit of S. H. H. Clark, the general managing director of defendant in error, in which it is averred that the "petitioner is a corporation organized under the laws of the state of Missouri, and a citizen of the state of Missouri," etc.

Upon this petition and affidavit an order was made by the district court about the 2d day of June, 1886, staying further proceedings, and removing the cause to the circuit court of the United States. About the 30th day of March, 1887, plaintiff in error filed his motion in the district court of Lancaster county, by which he sought to procure a vacation of the order of removal to the Federal court, and to have the cause placed on the docket for trial. The grounds of the motion were as follows:

"First--Because the affidavit upon which said order was obtained is not sufficient in matter and form to divest this court of jurisdiction.

"Second. Because the matter and facts set forth in said affidavit are not true.

"Third. Because the defendant railway company is not a non-resident corporation, but is a company formed by the consolidation of a Missouri corporation, a Kansas corporation, and a Nebraska corporation.

"Fourth. Because the defendant railway company, in filing its petition for condemnation of the plaintiff's land, appeared in its capacity of a Nebraska corporation, and is by said proceeding estopped to allege that it is a corporation under the laws of the state of Missouri.

"Sixth. That the defendant railway company, in seeking to acquire right of way under the laws of eminent domain, elected to proceed in its corporate character under the laws of the state of Nebraska, and is estopped to allege that it proceeded in this condemnation proceedings as a corporation organized under the laws of the state of Missouri."

The motion was overruled, and plaintiff prosecutes error to this court, assigning as error the ruling of the court upon the motion.

The first question presented for decision is a motion on the part of defendant in error to strike certain papers from the files, because they are not preserved as a part of the record by bill of exceptions. These papers appear to be copies of alleged articles of incorporation of the "Missouri Pacific Railway Company in Nebraska," and an article or memorandum of agreement between such corporation and the Missouri Pacific Railroad Company, by which the Missouri Pacific Railway Company in Nebraska is consolidated with the Missouri Pacific Railroad Company under the corporate name of the Missouri Pacific Railway Company, on the terms and conditions set out in the agreement; also the ratification and approval of such contract by the stockholders of each corporation. As these papers are in no way made a part of the record by bill of exceptions, or otherwise, they are improperly on file, and the motion to strike them therefrom is sustained.

This leaves the record consisting alone of the condemnation proceedings, appeal to the district court, petition affidavit, and bond for removal, the order of removal to the Federal court, the motion for reinstatement, and the ruling thereon. It is insisted by defendant in error that, as there was no exception taken to the order of removal, plaintiff in error must be held to have acquiesced in...