UNITE]): 'STATES 'fl. SOUTHERN PA,q..B. CO·
. , UNITED STATES tI. SOUTHERN PAC.
R. CO. et ale
(C-£rcuU OO'Ulrt, S. D. OaUjornia. November 22,1889.)
A demlirrer to a bill, which goes to matter comprising a part of facts which constitute II; good cause ofactionj as well as of facts·whWh.are bl.sufficient to consti· tute a .caulI8 of action, is properly overruled.
In Equity. On motions to modify orderovetTuling a demurrer, (39 Fed. Rep. 132,) and to file So second amended bill. . W. H. H. Miller, Atty. Gen., and Joseph H. Call, Special Asst, U. S. Atty,. . Joseph D. Redding and Oreed Ha'Jl'1MT&d, for. defendant the. Southern Railroad Company. Ross, J. Two motiona have been made, argued, and submitted in this case,-one on behalf of the Southern Pacific Railroo.dOompany, that the order made and entered on the 27th day of May, 1889,(39 Fed. Rep. 132,) overruling the demurrers theretofore filed to the amended bill of complaint, be so modified as to sustain the demurrer filed by said company to the said amended bill; and the other is a motion on behalf of the government to file a second amended bill in cases numbered 67, 68, and 69, respectivelY,.,which cases, subsequent to the submission of the aforesaid demurrers,Were consolidated by ll.n order entered by consent of all of the parties in interest. The ground of the first-mentioned motion is that the demurrer filed by the defendant railroad company only went to that portion of the amended bill as to which the court held no cause of action was stated. If that was all, undoubtedly the proper order,so far as that demurrer was concerned, would have been one sustaining it. But while the court held that the grant to the Atlantic & Pacific Railroad Company conferred upon that company noright of any nature to any particular piece of land within the indemnity limits of that grant prior to its selectipn, and, as a consequence, that the fact that lands were within such indemnity limits did not exclude them from the subsequent grant to the Southern Pacific Railroad Company, and that patents issued to the latter company were not for that reason invalid, yet, because the amended bill on its face showed that the lands in controversy were at the time of the grant to the defendant railroad company claimed to be within the limits of a certain named Mexican grant, which latter grant was then sub judice, and because of that provision of the grant to the Southern Pacific Company to the effect that if the route it was authorized to designate should be found to be upon the line of any other railroad route to aid in the construction of which lands had been theretoforegranted by the United States, as far as the routes are. upon the same general line, the amount of land theretofore granted should be deducted from the amount granted by the act in question, coupled with the alleged facts regarding the latter matter, the amended bill was con·
sidered by the court to state, in each of those respects, a good cause of action. A portion of the matter to which the demurrer ()f the defendant railroad company went was a material part of each of those causes of action, as well as of that as to which the bill was held insufficient, particularly the allegations in relation to the making of the grants, and for that reason all of the demurrers we,re properly overruled. The amendment to the amended bill was filed without objection, prior to the commencement of the argument on the demurrers, and the matter therein set up was argued orally and in the brief of one of the parties, and was therefore considered and passed upon by the court in its opinion. The motion to modify the order sustaining the demurrers is therefore denied. That on the part of the complainant for leave to file a second amended bill .I think should be granted. As at present advised, the additional matter, as explained by counsel. does not seem to metobe material to the real questions involved; but I think it but fair that every fact deemed by counsel to be material should be allowed to reach the supreme court, in which tribunal, no doubt, the important questions at issue will receive their final solution. Motion for leave to file second amended bill granted.
BROCKWAY f1. TOWNSHIP OF OSWEGO.
(OircwU Oourt, D.
Kensaa. November 25, 1889.)
Code Civil Proc. Kan. § 445, providing that "if execution shall not be sued out within five years from the date of any judgment" the. judgment shall become dormant, applies to judgments against towns, as manaamw is equivalent to execution.
Under section 440. authorizinlt dormant judgments to be revived in the same manner 118 is prescribed for reviving aotions before judgment, & judgment against. town which hasbeoome dormant may,be revi.ved in the manner presoribed.
BAME-LmIT,l.TION-SUSPENSION 011' PERIOD.
Section 428 provides that, unless the parties to an aotion whioh has abated, con$lnt to a revivor notice of application therefor must be served in the same manner as a summons. Section 21 provides that "if, when a cause of action acorues against 'a person, he be Out of the state, or has absconded or concealed himself, the period limited for the commencement of theactiO,n shall not begin,to run until he comes into the state. or while he is so absconded or conoealed." HeW, that a period of time during which the town had rio qualified officers on wbom process could be served, and purposely refrailledfromqualifying them to avoid the judgment. should be omItted from the period of mnitatlon for reviviDB the judgment, the creditor having exercised due dilill'ence.
At Law. Ro88ington, Smith Da7las, for plaintiff. Case Gla8s, for defendant.
FOSTER, J. :r'he plaintiff, on the 5th day of April, 1888, filed his action at law against the defendant municipality upon a judgment rendered on the 22d day of November, 1876, in favor of one A. A. Brock· way, in the district court of Labette county, state of Kansas, wherein