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Statement of the Case.
which she and the plaintiff, Ben. F. Lafayette, had jointly put up and cured, and in the proceeds of the sale of which the plaintiffs were in certain proportions to share. It was arerred that the amount of the hay so destroyed was 6664 tons, of the value of $2666, for which sums the plaintiffs asked judgment.
On May 6, 1890, the defendants entered a special appearance in the case, stating that they appeared “specially and only for the purposes of this motion and for no other purpose,” and moved the court to quash both the said summons and the said return, upon the grounds that the summons vras improperly and illegally issued, did not show the nature of the complaint filed, and did not set forth a cause of action; that the return was untrue; that J. W. Williams, who was designated in the return as “the agent of the within named defendants," was not, on March 17, 1890, such agent; that J. W. Williams was not on that day such a person as could legally have been served with process against the said receivers; and tbat the return and service were made improperly. In support of this motion the defendants proved that they were receivers of the said Missouri, Kansas and Texas Railway, duly appointed as such by the Circuit Court of the United States for the District of Kansas, and by the Circuit Court of the United States for the Western District of Arkansas, prior to the institution of this suit; tbat as such they were engaged in operating the said railway previously to and at the time of the service of the summons upon J. W. Williams; and that J. W. Williams was, on March 17, 1890, station agent for the said receivers at Muscogee, Indian Territory. The defendants filed at the same time the affidavit of J. W. Williams, to the effect that since the month of June, 1887, he had been station agent for the said receivers, but that he had never been the agent of “the Missouri, Kansas and Texas Railway, a corporation," within the Indian Territory, and was not such agent on March 17, 1890.
The court having beard and considered the motion, overruled the same, to which action the defendants excepted. Afterwards, on May 19, 1890, they filed their apster; deny.
Statement of the Case.
ing therein all the essential allegations of the complaint, but protesting that they had not been served with process, and asserting that the court had not acquired jurisdiction orer them in the case.
A trial was duly had before the court and a jury. After all the evidence on the part of the plaintiffs had been introduced, the defendants moved to have the same stricken out for the reason that it did not show that the engine which caused the alleged damage was engine No. 63, as alleged in the complaint. The motion was overruled, and the court granted the plaintiffs leave to amend their complaint by striking out of the same the words and figures “No. 63." The defendants excepted, and then mored for a continuance of the case in order to give them time to meet the allegations of the complaint as amended. This motion also was overruled, to which action the defendants excepted.
At the close of all the testimony the defendants mored the court to direct the jury to return a verdict in their favor. The court overruled the motion, and the defendants excepted. They then requested the court to give the jury certain instructions, among which was the following:
“The court instructs the jury that if you find from the evidence in this case that the bay claimed by the plaintiffs to have been burned by sparks cast out from the fire of one of defendants' engines was cut from the public domain or open lands of the Creek nation, and not upon land oirned or possessed by plaintiffs or either or both of them, and that said hay was so cut upon the said public domain or open lands of the Creek nation, without the consent of the said Creek nation or its officers or agents, then the plaintiffs cannot recover in this action."
The court refused to give this instruction, to which refusal the defendants excepted. Among the instructions which the court gave, and to the giving of which the defendants excepted, were the following:
“ X. The court further instructs the jury that evidence of a railway company allowing combustible materials to accumulate upon its track and right of way which is liable to take
Opinion of the Court.
fire from sparks escaping from passing engines and communicate it to adjacent property, is sufficient to warrant the jury in imputing negligence to the company."
“ XII. It is the duty of a railroad company to keep its right of way clear of combustible materials, and failure to do so is a circumstance showing negligence.
“ SIII. The court further instructs the jury that if they shall find for the plaintiffs, then the measure of damages is the market value of the bay when burned, together with interest at six per cent per annum from the date of the destruction of the bay."
On June 27, 1891, the jury rendered a verdict for the plaintiffs for the sum of $2664, with interest thereon at six per cent, and on July 10, 1891, judgment was entered in favor of the plaintiffs in the said amount, with six per cent interest on the same from date until paid. The defendants took the case upon writ of error to the United States Court of Appeals for the Eighth Circuit, where, on February 15, 1892, the said judgment was affirmed, 4 U. S. App. 247. They then made a motion for a rehearing in that court, and the same having been denied, they sued out a writ of error bringing the case here.
Mr. James Hagerman, Mr. Clifford L. Jackson and Mr. Joseph M. Bryson for plaintiffs in error.
Afr. William T. Hutchings for defendants in error.
MR. JUSTICE SHIRAS delivered the opinion of the court.
This was an action brought in the United States Court in the Indian Territory to recover for damages caused to the property of the plaintiffs by the negligent management of the railroad of the Missouri, Kansas and Texas Railway Company, a corporation created by the laws of the United States, and, at the time of the accident, in the control and management of George A. Eddy and Harrison C. Cross, receivers, who bad been appointed such by the United States Circuit Court for the District of Kansas and by the United States Circuit Court for
Opinion of the Court.
the District of Arkansas. Both of those districts and the Indian Territory constitute a portion of the eighth judicial circuit of the United States, and the railroad in question traverses the States of Arkansas, Kansas and the Indian Territory.
The first question presented is whether the trial court acquired jurisdiction to try the case against Eddy and Cross, receivers of the Missouri, Kansas and Texas Railway, by virtue of the summons served on one Williams as agent of said receivers in charge of their station at Maskogee in the Indian Territory.
The return of the marshal was that he had served the summons by leaving a copy thereof with J. W. Williams, the agent of the defendants at Muskogee, on March 17, 1890.
On April 8, 1890, the defendants entered a special appearance by attorney, and moved to quash the return of the marshal, for four reasons: “First, because on the day alleged in said return as the day of the service of said summons, to wit, March 17, 1890, J. W. Williams, styled in the marshal's return on said writ of summons as the agent of the within named defendants, was not such agent; second, because said J. W. Williams, on the 17th day of Marcb, 1890, was not such a person upon whom process against the said George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas and Texas Railway, could legally hare been served ; third, because said return is untrue; fourth, because said service and said return were illegally and improperly made.”
On May 6, 1890, the defendants, appearing specially, withdrew the motion theretofore filed by them to quash the return of the writ of summons, and, again appearing specially, and only for the purposes of a motion to quash writ of summons and return thereon, and, by leave of court, filed such motion, and in support thereof filed an affidavit of J. W. Williams and a certified copy of the order appointing receivers. The reasons filed in support of the second motion to quash were as follows: “First, because said writ of summons is improperly and illegally issued ; second, because the writ of summons in this cause does not show the nature of the complaint filed herein; third, because no cause of action is set forth in the
Opinion of the Court.
writ of summons issued herein; fourth, because said return on said writ is untrue; fifth, because said J. W. Williams, who is designated in said return as the agent of George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas and Texas Railway, a corporation, was not on the day alleged in said return as the day of the service of said summons, to wit, said 17th day of March, 1890, such agent; sixth, because said J. W. Williams was not on said 17th day of March, 1890, such a person upon whom process against George A. Eddy and H. O. Cross, as receivers of the Missouri, Kansas and Texas Railway, could legally have been served ; seventh, because said return and such serrice were illegally and improperly made."
The affidavit of J. W. Williams was to the effect that, at no time was he ever the agent of the Missouri, Kansas and Texas Railway, a corporation within the Indian Territory, but that since the month of June, 1887, he bas been station agent for George A. Eddy and H. O. Cross, receivers of the Missouri, Kansas and Texas Railway Company, and has been such agent at said town of Muscogee in the Indian Territory.
It, therefore, appears by the affidavit of J. W. Williams that the allegation, in the reasons filed, that said Williams was not the agent of the said receivers, was untrue, and that Williams was their agent at the time and place named in the return.
So far, then, as the objection to the service and return of the summons depended on the allegation that Williams was not the agent of the receirers, it goes for naught, but the question remains whether he was such a person or agent on whom process against the receivers could be validly serred.
In and by the act of Congress of Day 2, 1890, c. 182, $ 31, 26 Stat. 81, 94, it was provided that certain general laws of the State of Arkansas, in force at the close of the session of the general assembly of that State of 1883, as published in 1884 in the volume known as Mansfield's Digest of the Statutes of Arkansas, should be extended and put in force in the Indian Territory until Congress should otherwise provide; and among those laws, so extended, were those relating to