Page images
PDF
EPUB

judge of the court in which the cause was heard and the judgment obtained; and the giving and acceptance of such bond are, to some extent, like a confession of judgment, if the appellant fails to main. tain his contention in the appenate court.

The end of the litigation was reached in the court below when the judgment was rendered against the defendant, and presumably the plaintiff could by execution collect his judgment. The defendant, lowever, seeks an appeal and supersedeas, as of right he may; but upon what condition? Not simply that he will answer to the damages and costs if he fail to make his plea good, but his undertaking is to be with good and sufficient security that he shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good. The sureties on the bond must be held to have known what their obligation was, when they signed it; and does it not clearly mean that as the matter in the appellate court shall terminate as to the principal obligor in the bond, so in like manner it shall be to the sureties on his bond? Can it be that one result is to fall to the principal on the bond; that is, on the affirmance of the judgment in the appellate court, judgment and execution are to follow in the court below against the principal, but a suit, only, to enforce the liability of sureties in the bond? Is it not more reasonable that but one result shall follow, and, as that result shall fall to the principal obligor in the bond, so it falls to the sureties on the bond, and that the court, upon motion, as in this case, will give judgment and execntion, not only as to the principal, but also, and equally, against the security on the bond? It is said the court has no power or jurisdiction to render such judginent; that there is no act of congress giving the court such power,—which may be conceded; and that there is no state legislation in Alabama which authorizes such practice,—which may also be conceded. But whether there is state legis. lation or not, touching the subject, the supreme court of the United States would not be influenced by it. And the mandate to the judges of the court below is"That such execution and proceedings be had in such cause as according to right and justice, and the laws of the United States, ought to be had, the said writ of error notwithstanding."

The case comes back to the court below with the writ of error or appeal eliminated from the cause,—the condition of the supersedeas bond broken; and the court is again in possession of the cause, with power to give such remedy as the plaintiff may be entitled to. Sibbald v. U. S., 12 Pet. 491.

The practice in admiralty seems to be settled as to stipulation in appeal bond, and, as has been suggested, it is difficult to see why the rule should not be the same in all cases. Under the practice act of 1872, the courts of the United States, sitting in the various states, are to conform to the practice, proceedings, and modes of proceeding of the state in which the court is held, but only as near as may be; and state statutes do not give or take away the jurisdiction of the federal courts. Still, it may be noted that Alabama, like other states of the Union, has by statute given summary remedies upon appeal and supersedeas bonds, and in doing so has only done that which

[ocr errors]

ought to be done, in providing speedy remedies to parties who come into courts in pursuit of their legal rights, and who succeed in making their cause good. Any other practice would seem like a step backward; and, while the authorities cited may not, and do not, go to the precise question involved here, they are persuasive, and show the spirit and tendency, not only of legislative, but also of judicial, decision on this subject. Beall v. New Mexico, 16 Wall. 539; Smith v. Gaines, 93 U. S. 341.

DRAKE v. FOUND TREASURE MIN. CO.

(Circuit Court, D. Nevada. November 7, 1892.) 1. ACTION ON PROMISSORY NOTE-COMPLAINT-AMENDMENT.

Amendments which change the date, or amount, or time of payment of a note, or add or strike out names of parties, are admissible for the purpose of correcting an erroneous statement or imperfect description of the note described in the original com plaint, if the identity of the note is preserved, so as to show that the amended complaint is for the same cause

of action. 2. SAME-STATUTE OF LIMITATION-PLACE OF PAYMENT.

A note executed in one state, but made payable in another, is, in so far
as the remedy of collection is concerned, to be controlled and governed
by the laws of the state where the note is made payable.
At Law. Motion to strike out amended complaint. Denied. De-
murrer to amended complaint. Overruled.

E. S. Farrington, for plaintiff.
Baker, Wines & Dorsey, for defendant.

HAWLEY, District Judge. The plaintiff commenced this action in the state district court against the Found Treasure Mining Company on the 22d day of July, 1891, to recover the sum of $2,500, alleged to be due and owing from said defendant to plaintiff upon a promissory note for that amount, executed by defendant on or about July 22, 1897, payable on demand. The suit was subsequently re moved to this court, upon the ground of the diverse citizenship of the parties, the defendant being a foreign corporation. By stipulation of counsel, an amended complaint was filed, adding the names of John Doe and Richard Roe as parties defendant, and alleging, in substance, that on or about the 28th day of July, 1887, at San Francisco, Cal., the Found Treasure Mining Company made and delivered to Frank N. Drake, plaintiff, R. M. Clarke, W. H. Ennor, H. M. Yerington, and D. L. Bliss, its promissory note, whereby it promised to pay said parties, in 90 days from July 20, 1887, at Carson City, Nev., the sumn of $10,000, with 6 per cent. interest; that $2,500 of this amount was loaned to the corporation by plaintiff, and the balance of the amount was loaned by the other named persons; that on January 2, 1888, Clarke, Ennor, Yerington, and Bliss indorsed said note, and delivered their respective interests therein to the defendants Doe and Roe; that no part of the note has been paid; that the identity of defend ants Doe and Roe has not been discovered, nor their consent obtained to join them as plaintiffs, and they are therefore made parties defend

ant, but no personal claim is made against them. Plaintiff prays judgment for the sum of $10,000, with interest and costs. The defendant the Found Treasure Mining Company moves this court to strike out the amended complaint upon the ground that "it sets out another and different cause of action from that made by said original complaint,” and also interposes a demurrer on the ground that all recorery thereon is barred by the statute of limitations.” If the case rested upon the pleadings alone, the motion to strike out the amended complaint should be granted. No amendment should be allowed which, in effect, amounts to the institution of a new suit upon an entirely different contract, either as to parties or to the subjectmatter of the action. The general rule is well settled that a plaintiff is not at liberty to abandon the cause of action as made in his original complaint by inserting a new and different case by way of amendment, and it does not afirmatively appear from the allegations of the amended complaint in this case that plaintiff seeks a recovery upon the promissory note declared upon in the original complaint. But the plaintiff was, by leave of the court, permitted to file an afiidavit showing the true state of the facts. By this affidavit it does affirmatively appear that the cause of action set forth in the amended complaint is intended to be, and is, identical with the cause of action set out, or attempted to be set out, in the original complaint. The affidavit shows that the plaintiff, at the time of the commencement of this action, not having the note in his possession, believed that the rights of the payees of the note were several; that the promise of defendant was to pay plaintiff $2,500, Clarke $2,500, etc.; that, so believing, he commenced the action to recover the amount due to himself; that, after the case was at issue, and the deposition of certain witnesses taken, he discovered that the facts concerning the cause of action had not been correctly stated, and that the note had not been correctly described in his complaint; that the amended complaint was filed so as to conform to the facts; that plaintiff has but one cause of action against the defendant the Found Treasure Mining Company, and that is for the recovery of $2,500, loaned to it as stated in the amended complaint. From this statement it clearly and satisfactorily appears that there was no intention on the part of plaintiff to change the cause of action set out in the original complaint. Amendments which change the date of a note or contract for the pay. ment of money, or the sum or amount to be paid, or the time of payment, or by adding or striking out the name of any party, are admissible whenever the identity of the note or contract upon which the action was founded is preserved. In such cases the alteration is made not to enable the plaintiff to recover upon another or different note or contract than the one set forth in his original complaint, but for the purpose of correcting an erroneous or imperfect statement of the note or contract upon which the action was based. Under the amended complaint as explained by the affidavit it would require the same evidence to maintain the suit. The amendment does not make any new issue of fact. The real cause of action is identical and the same. It thus appears that the ends of justice will be subserved, and that no hardship or injustice will result to defendant. Upon prin.

ciple as well as authority the amended complaint should be allowed to stand. Hill v. Smith, 34 Vt. 541; Stevenson v. Mudgett, 10 N. H. 338, 34 Amer. Dec. 156, 159; Insurance Co. v. Billings, (Vt.) 17 Atl. Rep. 715; Hardin v. Boyd, 113 U. S. 764, 5 Sup. Ct. Rep. 771; Gen. St. Nev. $ 3090; Quillen v. Arnold, 12 Nev. 250; McCausland v. Ralston, Id. 195.

Defendant's contention that the cause of action set forth in the amended complaint is barred by the statute of limitations of the state of California, where the note was executed, being based upon the theory that the amendment introduced a new cause of action, cannot be sustained. Moreover, section 3662 of the General Statutes of Nevada, cited by defendant, which provides that “when the cause of action has arisen in any other state or territory of the United States,

and by the laws thereof an action there cannot be maintained against a person by reason of the lapse of time, no action thereon shall be maintained against him in this state," has no application to this case. The note, although executed in California, was made payable in the state of Nevada. The cause of action arose in this state upon the default of defendant to pay the note, and the remedy for the collection of the amount due thereon is to be controlled by the laws of this state, where the contract was to be performed. Wilcox v. Williams, 5 Nev. 163; Sutro Tunnel Co. v. Segregated Belcher Min. Co., 19 Nev. 121, 7 Pac. Rep. 271. This principle is so well established that further comment is unnecessary. The motion to strike out the amended complaint is denied, and the demurrer is overruled.

In re INTERSTATE COMMERCE COMMISSION.

(Circuit Court, N. D. Illinois. December 7, 1892.) CONSTITUTIONAL LAW-INTERSTATE COMMERCE COMMISSION-JURISDICTION.

So much of the twelfth section of the interstate commerce act as assumes to authorize the circuit courts to make orders enforcing subpænas issued by the interstate commerce commission is unconstitutional, since the constitutional grant of jurisdiction to the federal courts in “cases in law and equity" does not authorize those courts to use their powers merely in aid of an inves. tigation before an administrative body. Application by the Interstate Commerce Commission for an order to compel W. G. Brimson, J. S. Keefe, W. R. Stanley, and others to produce certain books and papers before the commission, and to answer certain questions. Application dismissed.

Thomas E. Milchrist, U. S. Dist. Atty., John P. Hand, Asst. Dist. Atty., and Walter D. Dabney, special counsel, for Interstate Commerce Commission.

Lyman Trumbull, John P. Wilson, Williams, Holt & Wheeler, and Prussing, Hutchins & Goodrich, for Calumet & Blue Island Railway Company and the witnesses.

GRESHAM, Circuit Judge. June 18, 1892, the Interstate Commerce Commission made an order at Washington, requiring the Calumet & Blue ísland Railway Company, the Joliet & Blue Island Railway Company, the Chicago & Southeastern Railway Company,

the Chicago & Kenosha Raiiway Company, and the Milwaukee, Bay View & Chicago Railway Company, and certain other railway companies, to appear at Chicago on July 13th, to answer an informal complaint, made by unknown persons, charging that the Illinois Steel Company had caused the four first-named companies to be organized for the purpose of operating their switches and side tracks at or near Chicago, and engaging in traffic by continuous shipment from places without the state of Illinois to places within that state, in connection with other named carriers, and had caused the lastnamed company to be organized for the purpose of engaging in like business in Wisconsin; that the steel company owned the five companies, and for six months had operated them, in connection with other named railroad companies, as a convenient device for evading the provisions of the interstate commerce act, and obtaining unjust preferences and illegal rates on interstate business. The five companies were particularly required to answer the following questions under oath:

" (1) Does any traffic contract, agreement, or arrangement, in writing or otherwise, exist between the companies above alleged to be under the control and operated by said Illinois Steel Company and any of the other companies with reference to interstate traffic? If so, state contract, agreement, or arrangement.

(2) Are any tariffs of rates and charges for the transportation of interstate property in effect between said companies above alleged to be under the control of and operated by said Illinois Steel Company and said other railroad companies? If so, what are they, and what are the divisions thereof between the several carriers?

(3) Have the companies alleged to be under the control of and operated by the Ilinois Steel Company received interstate traffic from any of the other car: riers above mentioned during the six months last past, or have they delivered any of said traffic to such other carriers during that time for any person. firm, or company otber than the Illinois Steel Company? and, if so, to what extent?"

The commission met at the time and place appointed, and the companies alleged to be owned and controlled by the steel company, except the Calumet & Blue Island, appeared, and in writing, under oath, answered the three questions in the negative, and denied that during the six months previous to the entry of the order for the investigation they had engaged in interstate commerce. The other company, the Calumet & Blue Island, filed a verified answer, averring that it had not engaged in interstate traffic for six months before the filing of the alleged complaint; that no traffic agreement or arrangement existed between it and any of the alleged connecting companies; that no schedule of charges for the transportation of property from one state to another state was in effect between it and other connecting roads other than this: that on June 13, 1892, it united with the Pennsylvania Railroad Company in a tariff of $2.75 per net ton on car lots of coal from points on the Southwestern Pennsylvania Railroad and the Youghiogheny Northern Railroad to Joliet, by way of Chicago, of which it received 40 cents per net ton, that amount having long been the proportion of the through rate allowed to other carriers for the same haul between Chicago and Joliet; that on July 6, 1892, it entered into a similar contract with the Lake Shore & Michigan Southern Railway Company and the Pittsburgh & Lake Erie Railway Company. The answer denied that

« EelmineJätka »