(113 U. S. 218) PRICE and others v. PENNSYLVANIA R. Co. (January 26, 1885.) SUPREME COURT-WRIT OF ERROR TO SUPREME COURT-FEDERAL QUESTION-CONSTRUCTION OF STATE STATUTE-DEATH OF MAIL ROUTE AGENT-NEGLIGENCE OF RAILROAD COMPANY. As the statutes of the United States, which authorize the employment and direct the service of mail-route agents, do not make an agent so carried by a railroad company a passenger, or deprive him of that character, in construing the Pennsylvania statute, giving a right of action for death caused by negligence, a writ of error will not lie to review the decision of the supreme court of Pennsylvania holding that an agent so killed was not a passenger within the meaning of the state statute. In Error to the Supreme Court of the State of Pennsylvania. E. A. Newman and Chas. A. Ray, for plaintiffs in error. for defendant in error. John Dalzell, MILLER, J. A statute of Pennsylvania, passed in 1851, makes the provision, now become common, for a recovery by the widow or children of a person whose death was caused by the negligence of another of damages for the loss of the deceased. A statute passed April 4, 1868, provides that "where any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depot, and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employe, the right of action or recovery in all such cases against the company shall be such only as would exist if such person were an employe: provided, that this section shall not apply to passengers." The plaintiff in error sued the defendant in error for the loss of her husband by a death which the jury, by the following special verdict, found to be caused by the negligence of the company's servant or servants: "We find for the plaintiff in the sum of ($5,000) five thousand dollars, subject to the opinion of the court on the question of law reserved, to-wit: We find that A. J. Price at the time of his death was route agent of the United States post-office department, duly appointed and commissioned, his route being on the Western Pennsylvania Railroad from Allegheny City to Blairsville, in the state of Pennsylvania; that his duties as such agent required him to be on the mail car on the mail train of said road to receive and deliver mail matter; that for the purpose of his business and that of the postal department, and in accordance with the laws of the United States and the regulations of the post-office department, and acceptance thereof by the railroad company, one end of the baggage car on the mail train was divided off and fitted up for the use of the department in carrying the mails, and that the duties of the said route agent required him to be in said room in the car during the running of the train; that said Price was daily on said train, making a round trip from Allegheny City to Blairsville and return; that on the twentythird day of July, 1877, while at his post in his room on said car, Mr. Price was killed in a collision of the mail train coming west with another train of the defendant company going east; that said collision was caused by the negligence or misconduct of the conductor and engineer in charge of the train going east in neglecting or disobeying orders, and in failing to take necessary precaution to avoid a collision. "We find that the Pennsylvania Railroad Company, by resolution dated April 16, 1868, accepted the provisions of the act of assembly, approved fourth April, 1868, (P. L. p. 59,) and that [at the] time of the collision the Pennsyl vania Railroad Company was operating the Western Pennsylvania Railroad under lease. *"If, under this finding of facts, and under the acts of congress and acts of assembly offered in evidence, and the postal regulations in evidence, the court #219 221 should be of the opinion that the plaintiffs, as widow and children of deceased, are entitled to recover, then judgment to be entered on the verdict in favor of the plaintiffs. If the court should be of the opinion that the law is with the defendant, then judgment to be entered in favor of the defendant non obstante veredicto." Upon this verdict the judge of the trial court held that the deceased was a person engaged in and about the train, within the meaning of the act of 1868, but that he was also within the proviso as a passenger, and gave judgment for plaintiff on the verdict. The judgment was reversed by the supreme court of Pennsylvania on the ground that the deceased was not a passenger within the meaning of the proviso, and a judgment was rendered for defendant, to which this writ of error is prosecuted. • *The plaintiff argues here, and insisted throughout the progress of the case in the state courts, that, by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the decedent was a passenger, and the supreme court erred in holding otherwise. These laws are thus cited in the brief of plaintiff's counsel: "Section 8, act March 3, 1865, (13 St. at Large U. S. 506,) provides that for the purpose of assorting and distributing letters and other matter in railway post-offices, the postmaster general may, from time to time, appoint clerks who shall be paid out of the appropria tion for mail transportation.' Section 4000, Rev. St. U. S. requires that' 'every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same." " We do not think these provisions either aid or govern the construction of the proviso in the Pennsylvania statute. The person thus to be carried with the mail matter, without extra charge, is no more a passenger, because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge; nor does the fact that he is in the employment of the United States, and that defendant is bound by contract with the government to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation. The statutes of the United States, which authorize this employment and direct this service, do not, therefore, make the person so engaged a passenger, or deprive him of that character, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment by others than the United States. We are therefore of opinion that no question of federal authority was involved in the judgment of the supreme court of Pennsylvania, and the writ of error is accordingly dismissed. (113 U. S. 222) COUNTY OF DAKOTA v. GLIDDEN. (January 26, 1885.) 1. WRIT OF ERROR-COMPROMISE-DISMISSAL. Where, after the rendition of the judgment sought to be reversed, the matter in controversy has been the subject of a valid compromise between the parties to the litigation, which leaves nothing of the controversy presented by the record in the supreme court to be decided, the writ of error will be dismissed on motion. 2. SAME EVIDENCE DEHORS THE RECORD. In such a case evidence dehors the record may be allowed to prove the compromise. In Error to the Circuit Court of the United States for the District of Nebraska. A. J. Poppleton and John M. Thurston, for plaintiff in error. J. M. Woolworth, R. P. Ranney, and A. P. Hodges, for defendant in error. *223 MILLER, J. error. This case comes before us on a motion to dismiss the writ of The ground of this motion is that since the judgment was rendered, which plaintiff in error now seeks to reverse, the matter in controversy has been the subject of compromise between the parties to the litigation, which is in full force and binding on plaintiff and defendant, and which leaves nothing of the controversy presented by the present record to be decided. The evidence of this compromise is not found in the record of the case in the circuit court, nor in any proceedings in that court, and it is argued against the motion to dismiss that it cannot, for that reason, be considered in this court. It consists of duly-certified transcripts of proceedings of the board of com-. missioners of Dakota county, who are the authorized representatives of that: county in all its financial matters, of receipts of the parties or their attorneys, and of affidavits of persons engaged in the transaction. These are undisputed on the other side, either by contradictory testimony or by the brief of counsel who appear to oppose this motion. They leave no doubt of the fact, if it is competent for this court to consider them, that shortly after the judgment against the county in favor of Glidden was rendered, the parties entered into negotiations to settle the controversy, which, after due deliberation and several formal meetings of the board of commissioners, resulted in such settlement. The judgment in the case was rendered on certain coupons for interest due on bonds issued by said county to aid in constructing railroads. These bonds bore interest at the rate of 10 per cent. per annum, and became due in the year 1896. By the new agreement the county took up the bonds and the coupons on which judgment was rendered, and issued new bonds bearing 6 per cent. interest, the principal payable in the year 1902. These new bonds were delivered to plaintiff and accepted by him in satisfaction of his judgment and of his old bonds, and these latter were delivered by him to the county authorities and destroyed by burning. There can be no question that a debtor against whom a judgment for money is recovered, may pay that judgment, and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal. And so, if, in the present case, the county had paid the judgment in money, or had levied a tax to raise the money, or had in any other way satisfied that judgment without changing the rights of the parties in any other respect, its right to prosecute this writ of error would have remained unaffected. But what was done was a very different thing from that. A new agreement, on sufficient consideration, was made, by which the judgment itself, the coupons on which it was recovered, and the bonds of which these coupons were a part, were all surrendered and destroyed, and other bonds and other coupons were accepted in their place, payable at a more distant date and with a lower rate of interest, with the effect of extinguishing the judgment now sought to be reversed, so that the plaintiff in that judgment could not issue execution on it, though there is no supersedeas bond to secure its payment. It is a valid compromise and settlement of a much larger claim, but it includes this judgment necessarily. It extinguishes the cause of action in this case. If valid, it is a bar to any prosecution of the suit in the circuit court, though we should reverse this judgment on the record as it stands for errors which may be found in it. To examine these errors and reverse the judgment is a fruitless proceeding, because when the plaintiff has secured his object the relation of the parties is unchanged, and must stand or fall on the terms of the compromise. It is said that to recognize this compromise and grant this motion is to as 226 sume original instead of appellate jurisdiction. But this court is compelled, as all courts are, to receive evidence dehors the record affecting their proceeding in a case before them on error or appeal. The death of one of the parties after a writ of error or appeal requires a new proceeding to supply his place. The transfer of the interest of one of the parties by assignment or by a judicial proceeding in another court, as in bankruptcy or otherwise, is brought to the attention of the court by evidence outside of the original record, and acted on. A release of errors may be filed as a bar to the writ. A settlement of the controversy, with an agreement to dismiss the appeal or writ of error, or any stipulation as to proceedings in this court, signed by the parties, will be enforced, as an agreement to submit the case on printed argument alone, within the time allowed by the rule of this court. This court has dismissed several suits on grounds much more liable to the objection raised than the present case, as in the case of Cleveland v. Chamberlain, 1 Black, 419, where the plaintiff in error, having bought out the defendant's interest in the matter in controversy, and having control of both sides of the litigation in the suit, still sought for other purposes to have the case decided by this court. On evidence of this by affidavits the court dismissed the writ. Similar cases in regard to suits establishing patent rights or holding them void by the inferior courts, as in Lord v. Veazie, 8 How. 254; Wood Paper Co. v. Heft, 8 Wall. 336, have been dismissed, because the parties to the suit having settled the matter, so that there is no longer a real controversy, one or both of them was seeking a judgment of this court for improper purposes, in regard to a question which exists no longer between those parties. It is by reason of the necessity of the case that the evidence by which such matters are brought to the attention of the court must be that not found in the transcript of the original case, because it occurred since that record was made up. To refuse to receive appropriate evidence of such facts for that reason is to deliver up the court as a blind instrument for the perpetration of fraud, and make its proceedings by such refusal the means of inflicting gross injustice. The cases and precedents we have mentioned are sufficient to show that the proposition of plaintiff in error is untenable. In the case of Board of Liquidation v. Louisville & N. R. Co. 109 U. S. 223, S. C. 3 SUP. CT. REP. 144, a question arose on the presentation of an order made by the authorities of the city of New Orleans to dismiss a suit in this court in which that city was plaintiff in error. The order was based on a compromise between those authorities and the railroad company, which the board of liquidation, intervening here, alleged to be without authority, and fraudulent. The court here did not disregard the compromise or the order of the city to dismiss the case; but, considering that the question of authority in the mayor and council of the city to make the compromise, and of the alleged fraud in making it, required the power of a court of original jurisdiction to investigate and decide thereon, continued the case in this court until that was done in the proper court. But when this was ascertained in favor of the action of the mayor and council, the suit was dismissed here on the basis of that compromise order. In the case before us we see no reason to impeach the transaction by which the new bonds were substituted for the old, and for the judgment we are asked to reverse; and the writ of error is accordingly dismissed. (113 U. S. 216) CHEONG АH MOY v. UNITED STATES.1 WBIT OF ERROR-MOOT QUESTIONS. The supreme court will not decide questions arising in cases which no longer exist in regard to rights which it cannot enforce. Writ of error dismissed. In Error to the Circuit Court of the United States for the District of California. H. S. Brown and Thos. D. Riordan, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error. MILLER, J. The plaintiff in error here is a Chinese woman, who, arriving at San Francisco from China, was not permitted to land in that city, by reason of the acts of congress of May 6, 1882, and the amendatory act of 1884, and, being forcibly kept on board the vessel, sued out a writ of habeas corpus to obtain her release. On a hearing in the circuit court of the United States it was ordered that she be returned on board the vessel in which she came, or some other vessel of the same line, to be carried back to China; and she was placed in the custody of the marshal, who was directed to execute the order. On undertaking to do this, it was found that the vessel had sailed, and the marshal placed his prisoner in jail for safe-keeping until another vessel should be at hand to remove her. Her counsel, upon this state of facts, applied to the circuit court for permission to give bail on behalf of the woman and have her released from custody. The judges of the circuit court were opposed in opinion on the question of granting this motion, and, having overruled it, have certified the division to this court. In the mean time it is made to appear to us, by the return of the marshal, and by affidavits, that on the second day of October, three days after the order was made overruling the motion, and ten days before the writ of error herein was served by filing it in the clerk's office of the circuit court, the marshal had executed the original order of the court by placing the prisoner on board the steam-ship New York, one of the Pacific Mail steam-ships, about to start for China, and that she departed on said vessel on the seventh day of October. It thus appears that the order of deportation had been fully executed, and the petitioner in the writ of habeas corpus placed without the jurisdiction of the court and of the United States six days before the writ of error was filed in the circuit court and several days before it was issued. The question, therefore, which we are asked to decide is a moot question as to plaintiff in error, and if she was permitted to give bail it could be of no value to her, as the order by which she was remanded has been executed, and she is no longer in the custody of the marshal or in prison. This court does not sit here to decide questions arising in cases which no longer exist in regard to rights which it cannot enforce. The writ of error is dismissed. 1 S. C. 21 Fed. Rep. 808. |