CARROLL t1. ALABAMA G. S. R. CO.
regulate commerce "to cut up by the roots the entire system of rebates and discriminations in favor of particular localities; that carriers are bound to deal fairly with the public, to extend them reasonable facilities for the transportation of their persons and property, and to put all their patrons upon an absolute equality.." Relative to the agreement set up in the defense I will say that "if the respondent is acting, or claims to -act, under the compulsion of circumstances and conditions of· its own creation or connivance in the making of an exceptional rate, then these will not avail it" (Business Men's Ass'n of Minnesota v. Chicago, St. P., M. & O. R. Co., 2 Interst. Commerce Com. R. 52); and, further, that, in my opinion, such an agreement contravenes the act to regulate commerce. My conclusion is that no justification has been shown by the respondent for the discrimination complained of, and that relator's demurrers to respondent's answer should be sustained; and it is so ordered.
OARROLL v. ALABAMA G. S. R. 00.' (Circuit Oourt, N. D. Alabama, S. D.
November 11, 1893.)
LWITATION OF ACTIONS-ExCEPTIONS-REVERSAL OF JUDGMENT.
Oode Ala. §2623, providing that, in case of the reversal of !II judgment on appeal, the action may be commenced again within one year, though the period limited may in the mean time have expired, was intended to relieve parties from the consequences of some error, mistake, or oversight in bringing or prosecuting the action, and applies only where the judg" ment of reversal is fatal to plaintiff's right to maintain the action in the form in which it was first brought. from recovering where the court on appeal held that plaintiff could not recover in the case made on the record, and that the lower court erred in not so instructing thejurY,and such a case is not within the statute.
2. SAME-EFFECT OF REVERSAL. It does not appear that the effect of a reversal was to prevent plllintiff
On demurrer to rejoinder.
This suit is an action for personal injuries. Among other defenses set up by the defendant is that of the statute of limitations. It is pleaded that the cause of action accrued more than one year before this suit was brought. The plaintiff rEplies that it is true that the cause of action accrued more than one year before this suit was brought, but that he had sued on the same cause of action in the city court of Birmingham within one year after the cause of action accrued; that he recovered a judgment in said suit; that the judgment was appealed from by the defendant, and on such appeal the supreme court of the state reversed and remanded the cause to the said city court (11 South. 803); and that afterwards, and before the expiration of one year from such reversal, the plaintiff brought this suit. To this replication the defendant rejoins, and says it is true that the judgment rendered in the city court for the plaintiff was reversed and remanded by the supreme court to said city court, but that said reversal was not for any error, mistake, or oversight of the plaintiff in bringing or prosecuting the suit, nor for any defect of form therein, but was reversed on the merits of the case, as shown by the record before the supreme court; that, after said cause was reversed and remanded, the plaintiff, of his own motion, appeared In said cIty court, and voluntarily dismissed the cause out of said court; and defendant therefore claims the plaintiff, in this suit, does not come within · Reported by Peter J. Hamilton, Esq., of the Mobile, Ala., bar.
verliaI()t' Judgment, SUit Brought within 'a Year. If any action is brought befdretbe time limited' hasexpiredaIid'judgment is rendered for the plaint1if, and such j\1d;;ment isllrt'ested or,revel"sed on appeal, the plaintiif or his legal may, commence suit ag'ain within one year from the reversal or, ,arrest of such' judgment, though the period limited may in tbe meantime have expired; and; in 1ike JUanner, if more than one judgment is arrested or, rElversed, suit may be recommenced witbin one year." To this rejoinder the plaintiif and insnj)stance says that it does appear Crom any of the averments of the, rejoinder that the plaintiff should not have anil maintain his present action.
Brooks,&Brooks, F. S. Ferguson, and S. W. John, for plaintiff.
TOULMlN, District Judge (after stating the facts as above). The statute of limitations is no bar to this suit if the plaintiff brings himself within the exception of section 2623 of the Alabama Oode, referred to; but, if his case does not come within the operation of that section, it is conceded, as I understand it, that he cannot maintain this action; that the statute of, limitations of one year isa barto it. To determine this question, which is the one raised by the pleadings now presented to the court, we must consider what the the legislature was in enacting the statute referred to, -what cases it was intended to apply to. In Roland v. Logan, 18 Ala. 307, the supreme court says:
the case then before it; that there was nothing in the case then under consideration that called for this expression of opinion by the court. However this may be, it was an expression of opinion bearing on a statute siDliIltf to the, one now being conE!idered, and it is entitled 1:0 great respect. In the case of Napier v. Foster, SOMa. 379, Stone, O. J., speaking of this statute (section 2623 of the Code), says, in the opinion of the court, that:
"If a judgment be rendered against a plalntiif for a defect of form, not touching the merits, he would be without remedy if the statute perfected the bar, dnl'1ng the pendency of the first suit. To remedy this defect, the act referred to was passed. It contemplated the bringing of another suit within a year after a judgment in a suit at law for the same cause of action had been rendered against the'plalntitr, but not upon its melits." It maybe that this declaration of the court was unnecessary in
"It is oilly in cases where some error, mistake, or oversight is fatal to the right to maintain the action in the form in which it is first brought that it can ever become necessary to invoke the provisions of the statute; that the was. intellded to relieve parties .of the consequences of some error, in bringing or prosecuting the first sult." mistake, or
It seems to me, then, that the test bywhich we are to determine the issue now before the court on the pleadings is whether the judgment of reyersal was fatal ,to the plaintiff's right to maintain the action in the fol'IXl in which it was first brought, or, in short, whether the judgment of reversal rendered necessary the dismissal of the first suit in the city court of Birmingham. Now, was the dismissal of that suit rendered by the reversal of the supreme court? It does not appear that it was. It does not appear that the effect of the reversal was· to prevent the plaintiff from re-
ClARBOLL ". ALABAMA G. I. B. 00.
covering in that suit. The supreme court held that the plaintiff could not recover in the case made on the record then before it, and that the lower court erred in not so instructing the jury. But it did not follow that on another trial the plaintiff might not be able to make a stronger or better case in the same action. The reversal of the case by the supreme court did not have the effect of defeating the plaintiff's right to continue the suit, and recover in it. The reversal did not render necessary the dismissal of that suit. It was a voluntary dismissal. While the case at bar may come within the letter of the statute, is it not manifestly opposed to the spirit of it? The supreme court of Alabama, in the case of Napier v. Foster, supra, say: "There are cases which require us to disregard the letter ot a statute
when they are manifestly opposed to Its spirit. It should be a clear case, however. to justify the application of this rule. There must be a moral conviction, based on the unreasonableness of the application sought to be made, that the legislature could not have Intended such result."
It seems to me that the application of the statute here sought to be made would be very unreasonable. It would be unreasonable to hold that the legislature intended to except from the operation of the statute of limitations a person who voluntarily dismisses his suit because of some adverse ruling of the supreme court in it, which did not render the dismissal necessary, but which had the effect only of declaring that on the facts of the case, as shown by the record before it, the plaintiff was not entitled to recover, and that the case should be remanded for another trial, wherein the plaintiff could have an opportunity of making a better case, if within his power to do so. As suggested by the supreme court in the case just referred to: "The statute was intended to relieve parties of the consequences ot some error, mistake, or oversight in bringing or prosecuting the first suit. It no
oversight or mistake had been committed in the first suit, it would seem there could be no occasion for the statute. It is only in cases where the error, mistake, or oversight is fatal to the right to maintain the action In the form in which It is first brought that it can ever become necessary to Invoke the provisions of the statute."
Is the plaintiff suffering the consequences of any error, mistake, or oversight in bringing or prosecuting the suit in the city court of Birmingham? Is it a case where there was error, mistake, or oversight on his part that was fatal to his right to maintain the action in the form in which it was first brought? If not, there could be no occasion for the statute, and it could not become necessary to invoke its provisions. The dismissal of the former suit was not rendered necessary by the judgment of reversal, and my opinion is that the statute invoked has no application. The conclusion, therefore, is that the rejoinder is a sufficient answer to the replication, and that the demurrer thereto should be overruled. It is SO ordered.
l'QRT ItOYAL & A. RY.
v. STATE OF SOUTHOAROLINA.
. , (Circuit Court, p. South Carolina. March 6, 1894.)
l.COUR'l'8.....JURISDICTION-On6Bs 'BILLAGAJNBT A STNfE.
a suitm e<Iultyagalnst certain corpolrations in one of her qWD"courts. The cause was theuremoved to a federaicourt, and a cross biIf'was flIed by one Of the defendants. 'Hela that, as the state had volunmrlly submitted herself to the jurisdiction, and as a cross bill is not· an orlginalsuit, the same could not be dismissed on' the ground that suitwlll not lie against a' stu,te.
" When it. suit is Instituted by a state, imd a cross blll is filed against it, it is proper to serve the state by making substituted service upon the attorney general, by whom the bill was filed.
The Qriginal bill in tb,isease was filed in the court of common 'pleas for 'the county of Beaufort, S. C,! by the state of South Carolina vs:the l}ort Royal & Augusta Railway Company and the Central Railroad'.&.. Banking Company. It was removed into this court, whereupon; after this removal, the croSs bill was filed by the Port RQyal& 'Augusta Railway Company. Subpoenas were issued, and the state of South Carolina was served bv substituted service on theitttorney general, by whom the or!gina:r bill was filed. A motion is now niade to set aside the service of the subpoena, and disriliss'the cross bill, the ground that it will not lie against a ' Mitchell & Smtth and Lawton & Cunningham, for complainant. O. W. Buchanan, Atty. Gen., and Smythe & Lee, for defendant. SIMONTON, Circuit Judge. There can be no doubt that a suit cannot be instituted in this court against a sovereign. state of the Union without its consent. The'1\'hMe point, therefore, turns upon the further question, is a ,cross bill a suit?, Story (Eq. PI. § 399) says: .
"A cross bill is a defense to an or a proceeding necessary to of a matter alroody in litigation. It is treated as a mer,e auxlllary !luit, or as a dependency 'l:lpon an original suit."
Across bin, says Mitford (Eq. PI, 99, pp. 81,82), is considered s.ula defenseol,' as a proceeding to procure a complete determination of a matter already in litigation. Foster (Fed. Pro § 169) gives the same defi;nWon. Daniell (Ch. Pro [3d Eng. Ed.] 1647) gives this definition:
,"All a defendant:cannot pray anything in his answer except to be dismissed the court, if he,.h/ul any relief to pray or discovery to seek, he must do so by a bill of his oWn,-what is called a '.cross bill.' A cross bill is a bill brought by a defendant a plaintiff 01' other parties in a former bill depending, touchIng the matter In question in that bilL It is treated as a mere auxiliary SUit, 01' as depending on the original SUit, and can be sustained only on matter growing out of the original bill."
Car:ver, 17 How. 595:
in the origlnai bill, as they cannot be properly examined In that suit, but constitute the SUbject-matter of an original, Independent suit."
"A cross bill should not Introduce new and distinct matters not embraced