Hollowell v. Norfolk & Southern Railway Co. , 153 N.C. 19 ( 1910 )

The defendants are the railway company and its receivers. It was admitted that plaintiff's cause of action arose prior to the appointment of the receivers by the Federal court. The plaintiff filed a single complaint against the railway company and its receivers, and a joint answer was filed by the defendant, admitting the appointment of the receivers, but denying the alleged acts of negligence and the damages sustained thereby. There was no plea that the defendant receivers were not liable because the injury complained of was not received while the receivers were operating the railroad under appointment of the Federal court, and that the corporation was not suable in the State courts, because such actions against the corporation had been enjoined by the Federal court. After offering evidence tending to show the negligence complained of and the date of the injury, and the damages sustained by plaintiff, the plaintiff offered in evidence an order of Judge Purnell, judge of the Federal court, permitting the plaintiff, upon his petition therefor, to sue the railway company. The defendant objected to the introduction of this order, upon the ground that the order was not certified by the clerk of the Federal court, nor was the seal of the court attached thereto. We do not think the evidence material and that its reception by the court constituted reversible error. The complaint alleged that the defendant corporation was operating a railroad in the State, and that its business and property had been pleaded under the management and control of the other defendants as receivers appointed by the Federal court. The answer, filed jointly by all the defendants, admitted the truth of these allegations. It became, therefore, unnecessary to offer evidence of a preliminary jurisdictional fact admitted in the pleadings. The defendant railway company had, by its answer to the merits, without raising any jurisdictional question, submitted itself and its defense on the merits to the jurisdiction (21) of the court. The court having jurisdiction of the parties and the cause of action, it remained only to hear and determine the cause upon the merits.

This court held in Kissinger v. Fitzgerald, 152 N.C. 247, that under the provisions of section 1224, Revisal, the receivers were properly named as defendants to an action instituted upon a cause of action arising prior to their appointment, because the action against the receivers was, in effect, an action against the insolvent corporation. Grady v. R. R.,116 N.C. 952; Farris v. R. R., 115 N.C. 600. In the Kissinger case, supra, this Court said: "We think the failure to formally name the company in the summons is not of the substance, and should be cured now by amendment, even if required." In the present action, however, the corporation was formally named as a defendant, as well as the receivers. It follows from these authorities that it was proper to sue the receivers alone or to join as defendants the corporation and the receivers, though the cause of action arose prior to the appointment of the receivers. What effect or what priority of payment the Federal Court will give to the judgment in plaintiff's favor, in administering the assets of the insolvent corporation, is not before us, and we refrain from expressing or intimating any opinion thereon. The defendants object to his Honor's charge to the jury "that if they believed the evidence in this cause, they should answer the first issue, Yes." The evidence offered by the plaintiff upon the first issue is not sent up. In the statement of the case it is stated that on the trial there was evidence tending to show the facts necessary to support a finding for the plaintiff and that the defendants offered no evidence. InS. v. R. R., 149 N.C. 508, this Court has so recently considered the question presented by this exception, that we deem it now only necessary to refer to that decision and to say that the defendants, being appellants, the burden is upon them to convince us that there was error in the ruling of his Honor excepted to. Upon the facts appearing in the record, we can not hold that the charge of his Honor constitutes reversible error. We can not see that a contrary inference was permissible from the evidence.

We have examined the other exceptions taken by the defendants, and we do not think they can be sustained.

No error.