Whitcomb v. Smithson

This was an action brought in the district court of Ramsay county, Minnesota, by John A. Smithson against the Chicago, Great Western Railway Company, and H. F. Whitcomb and Howard Morris, receivers of the Wisconsin Central Company, to recover for personal injuries while he was serving the Chicago, Great Western Railway Company as a locomotive fireman, in a collision between the locomotive on which he was at work and another locomotive operated by Whitcomb and Morris, as receivers of the Wisconsin Railway Company, appointed by the United States circuit courts for the eastern district of Wisconsin and the district of Minnesota. The Chicago, Great Western Railway Company answered the complaint, and the receivers filed a petition for the removal of the cause into the circuit court of the United States for the district of minnesota, setting up diverse citizenship, and that they were officers of the United States courts; that the controversy was separable; and that the railway company was fraudulently made a party for the sole purpose of preventing the removal of the cause. Plaintiff answered the petition and asserted that the company was made party defendant in good faith, and not for that purpose. An order of removal was entered and the cause sent to the circuit court, and thereafterwards that court, on hearing on rule to show cause, remanded it to the district court of Ramsay county. Defendants Whitcomb and Morris being in default, it was stipulated between plaintiff and themselves that in consideration that plaintiff allowed them to answer, plaintiff should have a trial of the cause at the June term, 1896, of the court, and further 'in case of a final judgment in said action in favor of said plaintiff against said receivers, that the receivers will not oppose the allowance of the same before the master in chancery.' Whitcomb and Morris thereupon filed their answer.

The case came on for trial on the morning of April 20, 1897, when Whitcomb and Morris asked leave to file an amended answer, setting up that the court was without jurisdiction because the cause was pending in the circuit court. The application was denied, and said defendants excepted. The trial proceeded, and after the testimony was closed, on April 21, counsel for the Chicago, Great Western Railway Company moved that the jury be instructed to return a verdict in behalf of that defendant, which motion the court granted. Thereupon the receivers asked permission to file a petition for removal supplemental to the petition already on file, and proffer of petition and bond being treated as made, the court denied the application, and exception was taken. On the morning of April 22 the court instructed the jury to return a verdict in favor of the Chicago, Great Western Railway Company, which was done, and thereupon the case went to the jury, which returned a verdict on April 23 against Whitcomb and Morris as receivers, and assessed plaintiff's damages. Motion for new trial having been made and overruled, judgment was entered on the verdict, and was subsequently affirmed by the supreme court of Minnesota on appeal. 71 Minn. 216, 73 N. W. 853. The pending writ of error having been issued, motions to dismiss or affirm were submitted.

Messrs. Howard Morris and Thomas H. Gill for plaintiffs in error.

Mr. John A. Lovely for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court: