United States v. Davis

• Decision Date: 02 November 1925
• Docket Number: No. 4246.,4246.
• Citation: 8 F.2d 907,56 App. DC 46
• Parties: UNITED STATES ex rel. RAUCH v. DAVIS, Director General of Railroads, etc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 46, 8 F.2d 907 (1925)

UNITED STATES ex rel. RAUCH v. DAVIS, Director General of Railroads, etc.

No. 4246.

Court of Appeals of District of Columbia.

Submitted April 6, 1925.

Decided November 2, 1925.

R. M. Hudson, of Washington, D. C., for appellant.

Lambert McAllister, A. A. McLaughlin, and Elizabeth Hyde, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

The appellant filed a petition in the lower court for a writ of mandamus to compel the appellee, as Director General of Railroads and Agent of the President, to pay a certain judgment which appellant claimed to have recovered against him. The respondent filed a general demurrer to the petition. This was sustained, the petition was dismissed, and the present appeal was taken.

The issue in the case is governed by the Transportation Act approved February 28, 1920. 41 Stat. 456. Congress thereby provided for the termination of federal control of railroads on March 1, 1920, with the provision that actions at law based on causes of action arising out of the federal operation of any railroad, of such character as prior to federal control could have been brought against the carrier, could after the termination of federal control be brought against an Agent to be designated by the President for such purpose; the actions to be brought in any court which, but for federal control, would have had jurisdiction of the cause of action, had it arisen against the carrier, and such actions to be brought not later than two years after the passage of the act. It provided, furthermore, that all final judgments in such actions rendered against the Agent designated by the President should be promptly paid out of a revolving fund created by the act.

On March 11, 1920, the President appointed Walker D. Hines, then Director General of Railroads, as the designated Agent under the act. On May 18, 1920, Mr. Hines resigned as Director General of Railroads and Agent, and on the same day John Barton Payne became Director General and Agent as Mr. Hines' successor. He has since been succeeded by James C. Davis, the appellee.

On May 19, 1920, the day next after the retirement of Mr. Hines as aforesaid, the relator, Helen Rauch, commenced an action in the Supreme Court of New York County, State of New York, naming the defendant therein as "Walker D. Hines, Director General, Hudson & Manhattan Railway Company," seeking damages for personal injuries suffered by her because of the negligence of certain employees of said railway company while she was a passenger upon its cars at a time when it was under federal control. Summons was issued directed to "Walker D. Hines, Director General, Hudson & Manhattan Railway Co.," and was served by copy left with an officer of that company. On June 9, 1920, an answer was filed in the name of the defendant, taking issue with the allegations of the petition. The case was regularly noted for trial, and on October 5, 1922, a trial was had, the defendant not appearing, resulting in a verdict and judgment in the sum of $2,132.20 for the plaintiff.

Afterwards, to wit, on December 17, 1923, being a day more than two years subsequent to the passage of the Transportation Act, the relator, Helen Rauch, filed a motion in the same case, reciting the foregoing facts and praying for an order "amending the name of the defendant upon the summons, complaint, and all other papers in this action, including the judgment roll, so that the same will read, "James C. Davis, Director General of Railroads (Hudson & Manhattan Railway Co.) and Agent of the President." The court on February 1, 1924, granted this motion over the objection of said James C. Davis, and ordered that the title of the action should be amended and changed accordingly, and that the judgment rendered on October 5, 1922, against Walker D. Hines, Director General, Hudson & Manhattan Railway Co., should be amended so that the name of the defendant in the judgment should read "James C. Davis, Director General of Railroads (Hudson & Manhattan Railway Co.) and Agent of the President, Defendant." The judgment as thus amended was refused payment by the appellee, whereupon the appellant brought the proceeding in mandamus, which is now before us upon appeal.

We are of the opinion that the judgment entered on October 5, 1922, in the Supreme Court of New York County, against "Walker D. Hines, Director General, Hudson & Manhattan Railway Co.," was void, since he was sued only as Director General, and not as Agent designated by the President, these being distinct and separate offices, and since in fact he did not hold either office when the summons was served, nor at any time during the pendency of the action. It is true that service of the summons was attempted to be made by copy left with a...