Tyson's Adm'x v. Illinois Cent. R. Co.

• Decision Date: 12 December 1912
• Citation: 151 Ky. 185,151 S.W. 404
• Parties: TYSON'S ADM'X v. ILLINOIS CENT. R. CO. et al.
• Court: Kentucky Court of Appeals

151 S.W. 404

151 Ky. 185

TYSON'S ADM'X v. ILLINOIS CENT. R. CO. et al.

Court of Appeals of Kentucky.

December 12, 1912

Appeal from Circuit Court, Muhlenberg County.

Action by Joseph Tyson's administratrix against the Illinois Central Railroad Company and others. Judgment for defendants and plaintiff appeals. Affirmed.

B. F Procter, of Bowling Green, Belcher & Sparks, and T. O. Jones all of Greenville, and Paul C. Gaines, of Frankfort, for appellant.

Trabue, Doolan & Cox, of Louisville, C. L. Sivley, of Chicago, Ill., and Taylor & Eaves, of Greenville, for appellees.

NUNN J.

In February, 1906, appellant filed her petition in the Muhlenberg circuit court against the Illinois Central Railroad Company and one or two individuals who were residents of that county asking damages for the negligent killing of her husband. She alleged, in substance, that her husband's death was caused by the joint and concurrent negligence of all the defendants. At the March, 1906, appearance term of the court, the railroad company filed its petition for a removal of the case to the United States Circuit Court for the Western District of Kentucky. The petition charged, in effect, that the joinder of the resident defendants with the railroad company was for the purpose only of depriving the railroad of its right to remove the case from the state circuit court to the United States Circuit Court, and was therefore fraudulent. The state court overruled the motion to remove, proceeded to try the case, and in September, 1906, rendered a judgment in favor of the plaintiff therein for $5,000. An appeal was prosecuted from that judgment to this court which in March, 1908, reversed the lower court, and remanded the case for another trial. During the prosecution of the case in the state circuit court and the Court of Appeals, the railroad company had a transcript of the record in the Muhlenberg circuit court, as it existed at the time its motion to remove was overruled, made and filed in the United States Circuit Court on November 27, 1905, and had the case docketed in that court. It appears that the case was continued from term to term in the United States Circuit Court by consent, but without consent as to jurisdiction, as appears of record, until November 28, 1908, at which time it appears that the case was tried before a jury which rendered a verdict against the plaintiff, appellant herein, and her action was dismissed. On a return of the case by this court to the state circuit court, the railroad company filed an amended answer in which it pleaded the proceedings and orders made in the case in the United States Circuit Court, and that judgment was rendered in its favor in that court, and had made and filed with its amended answer a copy of the judgment and all the proceedings in that court. Appellant filed a demurrer to this amended answer, which the court overruled, and, as she failed to plead further, dismissed her action.

Appellant admits that the judgment rendered by the United States Circuit Court, it being pleaded in the amended answer defeats her right of recovery in this action, provided the case of C. & O. Ry. Co. v. McCabe, Administratrix, 213 U.S. 207, 29 S.Ct. 430, 53 L.Ed. 765, is followed. She...