TURNER V. ILLINOIS CENT. R. CO.
TURNER v. ILLINOIS
(Circuit Court, W. D. Tennessee. May 3, 1893.) No. 118.
REMOVAl, OF CAUSE-TIME PLEAD on PnAcTIcE.
Under Mill. '" V. Code 'fr-nn. §§ (iOlO, [j011, w11ich require the plaintiff to file his declaration withi11 the first three days of the term to which the writ is returnable, and the defendant to appcar and plead or demur within the first two days thcreafter, the plea or dplllurrer is due, in the absence of a rule of the court, on or before the fifth day of the term, and applications to remove after that day, in the abs(cnce of an order or rule of court extending the time, are too late.
On motion to remand to the state court. Statement by HAMMOND, J.:
This was an action at law by 'V. C. Turner, administrator, etc., against the Illinois Central Hailroad Company, commenced in the circuit court of Gibson county, at 'frenton, Tenn., for tlw recovery of $30,000 d'lmages from defendant for negligently causing the death of plaintiff's int('state, who was an messenger upon a passenger train whieh collided with a freight train. The teste of the original writ, The praetice of the Tennessee courts, was the "fourth Monday in A. D. 1891," but it was issued November 30, 1891, and COllllnanded the sheriff to summon defendant to appear before that court "on tbe fourth Monday in 1iay next," to answer, etc., and it was duly served on January G, 'fhe caption of the declaration is, "May term, and it was on May 4, before the fourth of May, which was May 18!J3. On Monday, :May 30th, dpfendant filed its pleas. and on tll(, sallJe (lay its petition and bond for the removal of the snit to the circuit court of tllP United 1;tates at ,Jackson. 'fenn., and the transcript was duly filed in the federal court. The plaintiff moved to remand tlw suit to the state court, bee-ause the petition and bond for were not tiled in the state court "at. the tiue, or at lIny time before, tlw dc·fendant is required by the laws of the s1:lte or the rule of the state court in which ,;nch suit is IJrougln to answer or pll!<ld to the dW'lrlr'ltion or COIllplaint of the plaintiff," under section 3 of the act of congress of March 1887, as amended by the act of August 1888, (24 Stat. [;52; 25 Stat. :n:J.) There is no rule of the Gibson county circuit court on the subject, and the state statutes pertaining thereto appmr as follows, in Mill. & V. Code: "Sec. 5010. 'l'he declaration of the plaintiff shall he within tlll' first three days of the term to which the writ is returnable; otherwise the suit may, upon motion of the defendant, be dismissed at plaintiff's cost. Sec. 5011. '.rhe defendant shall appear and demur or plead within the first two days after the time allotted for filing the declaration; otherwise the plaintiff may have judgment. by default. Sec. 5012. The plaintiff and defendant shall, within the first two days after each subsequent step taken by the othel' in making up an issue, demur or plead thereto, on penalty of having the suit dismissed, or judgment taken by default, according as the failure is by the plaintiff or defendant. Sec. 5013. The court. may, however, enlarge the time for pleading, upon application of either party, in proper cases, or excuse the failure to plead within th? time prescribed, upon good cause shown." TheBe provisions are found in Thompson & Steger's Tennessee Code as sections 4238-4241..
Neil & Deacon, for the motion. Rankin & Rhodes, opposed. HAMMOND, J., (after stating the facts as above.) As we understand the ruling in Railroad Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. Rep. 306, the statute in Tennessee requiring the plea or v.551o'.llv.6-44
demurrer to be filed within two days after the time allotted for filing the declaration niakes the plea or demurrer due, in the absence of a rule of court, before the expiration of the fifth day of the term; hence all applications to remove after the fifth day, in the absence of an order or rule of court extending the time to plead, come too late. Motion granted.
SOUTHERN MINNESOTA RAILWAY EXTENSIOX CO. v. ST. PAUL & S. C. R. CO. et al. (Circuit Court of Appeals, Eighth Circuit. May 1, 1893.) No. 203.
RES JUDlCATA-ApPLlCATION-DIFFERENT CAUSE OF ACTION.
Although a second suit betw the same parties is upon a different claim ('n or demand, the prior judgment constitutes an estoppel as to matters actually put in issue, or points controverted, upon the determination of which the finding or verdict was rendered. Cromwell v. Sac Co., 94 U. S. 351, followed.
OF ESTOPPEL-FINDINGS OF FACT AND LAW.
The estoppel arising from a finding in a previous suit between the same parties is not confined to matters purely of fact, or of mixed fact and law, but extends to a decision of the legal rights of the parties on a state of facts common to both suits, although the causes of action are different.
l:3AME-MATTERS DECIDED-How SUSTAINED.
On a plea of res judicata, where the fonner judgment was rendered pursuant to the findings and conclusions of a referee, the court may examine the entire report of such referee, as well as the pleadings, for the purpose of ascertaining what issues were in fact raised and decided, and upon what theory the former judgment proceeded.
SAME-l:3UIT TO RECOVER LANDS-SUFFICIENCY OF DESCRIPTION.
In a suit in a state court by one land-grant railroad company against another to recover lands lj'ing within overlapping grants, the bill designated the lands sued for as the odd-numbered sections lying within 20 miles or its route within specified ranges and townships, and there was annexed to the bill a diagl'l1m alleged to be a correct map of complainant's road through such townships and ranges. There was nothing to show that during the progress of the suit any question had ever been raised as to the sufficiency of the description. Held, that in a subsequent suit in a federal court· to recover· the lands the plea of res judicata could not be avoided on the ground that the record in the prior suit did not show jhat the same lands were then sued for.
SAME-MATTERS WHICH MWIIT HAVE BERN PLEADED.
'l'he second suit being based upon the ground that as the lands lay within the defendant's indemnity limits, and within complainant's grant limits, the full equitable title passed to complainant as of the date of its grant, the plea of res judicata could not be avoided on the theory that the former suit was based entirely on an alleged fraud by defendant in constructing its road through the overlapping region on a route somewhat different from that indicated in its original map of definite location; for as the suit was between the same parties, and to recover the same lands, the estoppel applied to all grounds of action which might have been pleaded"in the former suit.. Cromwell v. Sac Co" 94 U. S. 351, followed.
<6.'·SAME-MATTERS ACTUALLY 'LITIGATED.
In the prior suit the referee found as a fact that all the odd-numbered sections within defendant's indemnity limits throughout the overlapping