M. K. & T. Railway Co. v. Crowe

1. Railroad Corporations; Service of Process. Service of a summons on a railway company by the sheriff leaving a copy thereof with J. A. W., at the depot of the company, in the county, he being in charge of the depot, and ticket agent of the company, and the railway company having designated no person in said county upon whom summons should be served, is good, without specifying in express terms that the road of the company runs into that county, or that the company transacts its business therein. ■2. Surprisu; Statements of Judge; Jaches of Party. Statements made by a judge out of court, previous to the commencement of a term, that certain cases will not be tried at the ensuing term, are not judicial determinations, and a party relying upon such statements does so at his own peril,

Error from I/yon Distinct Court. Crowe brought his action against the Railway Co. to recover damages for breaking and entering the close of the plaintiff, the-N.’W.-J of sec. 14, township 19 south, of range 11 east, in Lyon county, unlawfully, and with force, on the 15th of December 1869, and on divers days and times since that day, and digging up clay, of the value of $100, said clay being and lying on lands not belonging to the defendant, but on said lands of plaintiff. A second cause of action was for breaking and entering into said close of plaintiff and taking and carrying away clay of the value of $100, in which clay said defendant had no interest; and a third cause of action alleged that defendant had, since said 15th of December continually,, unlawfully and forcibly broken and entered said close of plaintiff, with persons on foot, and with locomotives and railroad cars, and broken down, run over, and used and occupied said land, and deprived plaintiff of the use thereof, to his damage $100. The petition further alleged that “said plaintiff is the party injured by the carrying away of said clay as aforesaid, and claims treble the value of the same.” The summons was directed to the sheriff of Lyon county, and was returned with the following indorsement of service: “Sheriff’s Office, Lyon County, Kansas: I received this summons on the 24th day of March 1871, at 10 o’clock A.M., and executed the same in my county by leaving a true and certified copy thereof, with all the indorsements thereon, with John A. Watson, at the depot of the within named defendant, he being in charge of the same, and ticket agent thereof, on the 31st day of March 1871, no person being by said defendant designated in said county upon whom summons can be served, and the chairman of the board of directors or trustees, or other chief officer is not to be found in my county. “E. H. Coats, Sheriff of Lyon Co.” The Railway Co. made default, and at the July Term 1871 said case was called, and at plaintiff’s request was tried by the court. The court found for the plaintiff, and assessed his damages at $300, and gave judgment accordingly. Afterward, at the same term of the court, the defendant appeared and filed two motions to set aside the judgment. The second of these motions was supported by the affidavit of defendant’s attorney. The facts upon which the motions are grounded, are sufficiently stated in the opinion. The district court overruled both motions, and the Railway Co. brings the case here for review. 1. By § 1 of ch. 123, Laws of 1871, the railroad company is “required to designate a person upon whom process may be served,” only in counties “into which its railroad line does run,” or in which its business is transacted. The return of the officer must show one or both of these facts, to exist, before service can be made as designated in § 3 of said act. The return shows neither of these facts to exist. The reference in the return to the defendants’ “depot,” and the person “having charge thereof,” and “ticket agent,” does not show that Lyon county was one “into which its railroad line does run,” nor that its business is transacted in said county. The officer’s return is insufficient upon both of these points; and an insufficient return is as no return. Crocker on Sheriffs, §39; 10 Johns., 338. It not appearing to b'e a good service under the act referred to, it only remains to examine § 68 of the civil code. By this statute there are three classes of persons upon whom process may be served, in the order following: 1st, The president, chairman of the board of directors, trustees or other chief officers; 2d, Cashier, treasurer, secretary, clerk, or managing agent; 3d, By a copy left at the usual places of business of such corporation. But it is to be observed that before the service can be made as last mentioned, it must appear by the return that service could not be made upon either of the first or second classes in said county. It does appear by the return that service could not be made upon the “ chairman of the board of directors, trustees, or other chief officer,” three of the officers only enumerated in the first class, leaving the president, and all of the entire second class, for aught that appears, still residing and being in said county. 3 Estee’s PL, 25, § 12. 2. It is also submitted-that had the service been good, the second motion was made in time, and should have been sustained, and a new trial granted. The statement of the judge of the court, relative to the business of the court, is ¡such as the attorney has a right to rely upon, and a mistake •of the court is such that ordinary prudence would not guard ¡against; 28 Cal., 335; 5 S. ■& M., 449; "Walker’s U. S., 505; 3 Estee’s PL, 590. 3. The case shows that the court assessed treble damages. We claim that the record does "not show a case entitling the plaintiff to recover treble damages. Wallace v. Finch, a recent Michigan case; 1 Estcc’s PL, 207, § 21; 2 Cal., 103. 1. The return indorsed upon the summons shows a valid . service. Laws' of 1871, p. 285. , ... 2. As to the “misconduct of plaintiff” and “irregularity in obtaining the judgment,” and “ fraud on the part of the plaintiff in obtaining the judgment,” there is nothing in the record except the motion—and nothing in that- showing that any such things existed. .As to the “surprise which ordinary prudence could not have guarded against,” it is’not one of the grounds for vacating a judgment; § 5.68, code., A statement of a judge off the bench is nothing on which an attorney has a right to rely, for when parties are in court they have rights independent of the judge; and whatever, discretion he may exercise is to be a “ sound discretion,” and can .only, be exercised in- court. The defendants below were in default when the conversation was had with the judge, and if the attorney had been present when the case was tried he could not have offered any defense to plaintiff’s action.