Patch v. Wabash Railroad

delivered the opinion of the court.

This was an action brought by the plaintiff in error to recover for the death of his intestate in a collision upon the defendant’s railroad in Illinois. The action was begun in a court of the State and the defendants forthwith filed a petition for the removal of the cause to the United States Circuit Court. The petition averred, among other things, that the defendant was a corporation organized under the laws of Ohio' and a citizen of that State, and was not a resident of Illinois, and that the plaintiff was a citizen and resident of Illinois. The removal was ordered and completed. Thereupon the plaintiff filed in the United States Court a plea, in which he alleged that the defendant was a corporation organized and existing under and by virtue of the laws of Illinois, Missouri, Indiana, Michigan and Ohio, by the consolidation of five other corporations, severally created by the laws of those States respectively, that the defendant was a citizen of and resident in Illinois and each of said other States, and that the plaintiff was a citizen of Ohio; and the plaintiff prayed judgment whether the court could take cognizance of the action.

The defendant, after having pleaded the general issue to the action, demurred to the plaintiff’s plea. Upon a hearing the demurrer was sustained, and the plaintiff, electing to stand by his plea, a judgment was entered that the defendant recover its costs. The plaintiff prayed a writ of error, and the Judge

It is obvious that the mistake alleged by the new certificate was not clerical. The Judge did not write one thing when he meant to write another, and no inferior officer made a record not corresponding to the action of the court. We cannot read the words “Under a mistake as to the nature and contents thereof,” as meaning that the Judge did not know that he was signing a certificate for this court, or as signifying more than that, if he had given the matter greater attention he would not have signed one saying what it said. The certificate must have received some consideration, as it contains a statement or ruling adverse to the plaintiff, to which we shall refer in a moment. This being so, it appears to us extremely questionable, at least, whether such a 'certificate, which is an act of record, stands on any different ground from judgments and the like when the term has passed; see Wetmore v. Karrick, 205 U. S. 141 , 153, et seq.; Michigan Insurance Bank v. Eldred, 143 U. S 293 , and also whether the so-called amendment, supposing it otherwise valid and properly made without leave of this court, can be considered by this court on the present writ of error. Michigan Insurance Bank v. Eldred, 143 U. S. 293 ; McCarren v.

If we were to consider the amendment it would amount to this: The plaintiff pleaded to the jurisdiction of.the court as a court of the United States and stood upon his plea. The Judge, however, laid down a proposition of law on which he denied the right of the plaintiff to plead to the jurisdiction, and thereupon took jurisdiction so far as to give judgment for > costs. By the analogies of the action of this court in other cases, we should decide for ourselves the preliminary as well as the final question of law in order to decide whether the Circuit Court, as a court of the United States, had the right to give any judgment, even for costs. If the preliminary question should be-considered it would seem that the Judge below was wrong in taking the proviso in the Illinois statute (Laws of 1905, p. 2; Hurd, Rev. Stats. 1905, c. 3, § 18/pp. 107,108), “that no nonresident of this State shall bé appointed of act as administrator or executor/’' as opening the appoiñtment of a citizen of Ohio to this kind of collateral attack. - See Simmons v. Saul, 138 U. S. 439 ; Salomon v. People, 191 Illinois, 290, 294. It is not reasonable to interpret it as making such a severance between the appointment and the power to act which is a consequence of the appointment, as to leave the former unimpeachable in these proceedings but its effect open to dispute.- The words “or act” may have reference more especially to executors, and may be a reminiscence of the ancient law, by which they derived their powers from the will, a notion that has died hard. At all events presumably they offer an alternative to “shall be appointed,” and refer to action without appointment in Illinois, for instance action by an administrator appointed elsewhere, not to action after appointment when one is. made. As we read them.with our present light, at least, we deem them insufficient to prevent the plaintiff from insisting upon his ', right to keep out of the United States court.

We proceed then to deal with the merits of the plea. The original certificate declares that the record shows that the de-'

Judgment reversed.. Suit to be remanded to the state court.