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upon which the said taxes were voted, the said swamp lands conveyed, and said stock subscriptions made, and to the damage and injury of the citizens and property owners in Polk City.
The prayer of the petition is as follows: "Wherefore, plaintiff demands that defendants be required to reconstruct and operate the main line of said railroad upon the line originally constructed, running from the city of Des Moines, in Polk county, Iowa, north, via Polk City, to Ames, in Story county, Iowa, making Polk City a station on the said main and continuous line of railroad from the city of Des Moines, Iowa, to Ames, Iowa, and that same be constructed and operated in full compliance with the terms and conditions upon which the taxes were voted and paid, swamp lands conveyed, and subscriptions paid as aforesaid, and prays a peremptory writ of mandamus, commanding the said defendants to forth with comply with the above demands, and for such other remedy and relief as may be lawful and proper in the premises.” To this petition there was filed a joint demurrer, and also a joint answer, on June 8, 1883. In the answer, among other things, the following matter of defense is set out:
"And for further answer and defense to plaintiff's petition defendants say: About the year 1879 the Chicago & Northwestern Railway Company leased the Des Moines & Minneapolis Railroad, then constructed and in operation from the city of Des Moines via Polk City to Ames, and thence north to Story City, in Story county, a distance of about (58) fifty-eight miles, and during the said year the Chicago & Northwestern Railway Company became the owner of all the stock, franchises, and privileges of the Des Moines & Minneapolis Railroad Company, and has ever since and now owns, holds, and controls the same, and operates said railway as a part of the system of the Chicago & Northwestern Railway Company. At the time of the construction of said railway, and the acquisition of the same by the Chicago & Northwestern *Railway Company, said railroad between Des Moines and Story City was a narrow-gauge road, and during the years 1880 and 1881 the defendant, the Chicago & Northwestern Railway Company, changed the gauge to a standard guage, relaid the same with new steel rails and ties, making the same a firstclass road. The narrow-gauge road was not a first-class road in any respect, very little grading having been done, and running mainly over the top of the ground, with the surface nearly in its natural and native condition, there being very few cuts and very few fills, and the road, as a whole, as it then existed, was of very little benefit to any towns along it or to the company which owned it, and the road was wholly unable to earn operating expenses and a reasonable interest upon its cost.
"The Chicago & Northwestern Railway Company extended the line from Story City to Jewell Junction, and thence north through Webster City, Eagle Grove, Algona, and to the state line north at Elmore, where the same connects with a ihrough line, now controlled and operated by the Chicago & Northwestern Railway Company, known as the Chicago, Minneapolis, St. Paul & Omaha Railroad, thus making a through and continuous line, and very direct, from the city of Des Moines to the cities of Minneapolis and St. Paul. The said road is built and constructed as a first-class road, with steel rails and easy gradients, and is capable of and is doing a large amount of through business and traffic. These defendants say that, with a view to making such a first-class road, it becomes absolutely essential and necessary to change the line so the same should run about two miles or two miles and a half east of Polk City, in order to avoid a very heavy grade of about 85 feet to the mile for three miles, going down into Polk City, and about the same distance and grade going out of it. The grade is not only very heavy, but the curves necessarily very great, and an engine
capable of hauling 25 to 30 cars on the present line as constructed east of Polk City could only haul, at most, ten to twelve cars over the line via Polk City. In view of this condition of affairs
and the impracticability of operating the road through Polk City, the Chicago & Northwestern Railway Company, in the summer of 1880, made overtures to the people of Polk City to change the line to its present location.
“After many conferences and public meetings in the town of Polk City, the citizens of said town agreed with the Chicago & Northwestern Railway Company that if said company would build a broad-gauge road from a point about two miles north-east of Polk City, into the town, and change the location of their depot to a point more convenient for the citizens of Polk City to do business, both as to passengers and freight; to run two passenger trains from the main line to Polk City, on their way from Des Moines to Ames,-two mixed passenger and freight trains each day; move all freight promptly, with no greater charge for freight or passengers than if Polk City were on the main line; would also build and maintain good and sufficient stock-yards, in the vicinity of the depot in Polk City, to accommodate all shippers, etc.; would transport free all the material from Chicago, or any other point west of that place, to build a bridge over the Des Moines river; would pay the sum of one thousand dollars in money towards the building of said bridge, besides such transportation; and if the company would further perform, all and singular, tho stipulations and agreements set out in a certain contract made between the citizens and tax-payers of Polk City and Polk county and the Chicago & Northwestern Railway Company, dated on the second day of September, 1880, as shown by a copy of said contract hereto annexed and made a part of this answer, then and in that case it should be lawful and proper for the defendants to change such line of railway, and take up the narrow-gauge running into Polk City. Said contract was made and signed by thirty-five of the principal tax-payers and residents and business men of Polk City and Madison township, as appears by the said copy annexed.
"In pursuance of the said contract the main line of the defendant's road was changed, as alleged in plaintiff's petition, at an expense to defendant of $15,000, and as herein admitted, and the narrow-gauge track, from a point about three miles*south of Polk City to a point about two miles north-easi thereof, was then and there, during the year 1881, taken up and a broadgauge built into said Polk City, as provided by said agreement, and from that time hitherto and now, the defendant, the Chicago & Northwestern Railway, has operated a broad-gauge road into said Polk City, in all respects in accordance with the contract herein referred to.
“And these defendants aver that said contract was made publicly, and the said plaintiff, Emanuel H. Crane, and all other citizens of Polk City and Madison township and the county of Polk, in the state of Iowa, were each and all well acquainted and had knowledge of the said contract and all that has been done thereunder, and acquiesced and consented thereto and therein. And defendants aver that the citizens of Polk City, and of Madison township and Polk county, acquiesced and made no objections to the taking up of said narrow-gauge track, and the laying down of the broad-gauge, and the building of the new depot and stock-yards. And these defendants further say that by reason of the said contract, and in compliance with the conditions of the same by the Chicago & Northwestern Railway Company, the citizens, voters, and taxpayers of Madison township and Polk City and Polk county have been greatly benefited, and the town of Polk City placed upon a through line of railway, much more advantageous to them in all business respects than the narrowgauge railway as built and located through their town.
“The defendants further state that the Chicago & Northwestern Railway Company has become and is the sole owner of the stock and road and franchises of the Des Moines & Minneapolis Railroad Company, and that the latter-named company has no longer any interest therein, and has no interest in the subject of litigation mentioned in the plaintiff's petition; that in case any relief can or may be granted to the plaintiff or any other person, the Chicago &
Northwestern Railway Company will be solely liable to perform and execute any and all orders of the court in respect thereto; and that said Chicago & Northwestern Railway Company is entirely solvent and able to respond to any judgment or decree which may be rendered in behalf of the plaintiff in this suit.
"Wherefore, defendants say that the plaintiff, the town of Polk City, and Madison township, and the county of Polk, are each and all forever estopped, by reason of the matters hereinbefore stated, to claim or demand the relief prayed by the plaintiff, or any relief whatever, by reason of the change of the line of railways hereinbefore set forth.”
On the same day, June 8, 1883, the Chicago & Northwestern Railway Company filed its petition for a removal of the cause to the circuit court of the United States. After setting out that the matter and amount in dispute, exclusive of costs, exceeds the sum or value of $500, and that the petitioner is a corporation and citizen of Illinois, the petition proceeds as follows: "That your petitioner's co-defendant, the Des Moines & Minneapolis Railway Company, is merely a nominal party in this suit, for the reason that your peti. tioner is the owner of all the stock and franchises of the Des Moines & Minneapolis Railway Company, and is the lessee of said railway in perpetuity, charged with the duty of operating said railway, and subject to the payment of all claims or demands of every nature and kind made against said Des Moines & Minneapolis Railway Company, and your petitioner will be solely liable to obey any order made in this cause, and to perform any judgment rendered; that the controversy in this case is wholly between the plaintiff and the defendant, the Chicago & Northwestern Railway Company, who are citizens of different states, and which controversy can be fully determined as between them without the presence of the Des Moines & Minneapolis Railway Company; that your petitioner is the only defendant actually interested in such controversy; that the plaintiff, Emanuel H. Crane, was at and before the time of bringing this suit, and at all times since has been, and still is, a citizen of the state of Iowa and a resident thereof." The accompanying bond was approved by the state court, and the petition for removal of the cause granted, and thereupon a motion to remand the cause, made in the circuit court of the United States on October 30, 1883, was granted on May 24, 1884, and the cause remanded. To reverse this order and judgment this writ of error is prosecuted.
*The right of removal from the state court, which is contested in this case, is founded on the last clause of the second section of the act of March 3, 1875, (18 St. 470; Rich. Supp. 173:) “And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.” It is accordingly argued in its support that the sole and real controversy diselosed by the pleadings is between the plaintiff below and the plaintiff in error, to which the Des Moines & Minneapolis Railroad Company is a merely nominal party. The action, it is said, is brought in pursuance of section 3373 of the Iowa Code, which is as follows: "The action of mandamus is one brought in a court of competent jurisdiction to obtain an order of such court commanding an inferior tribunal, board, corporation, or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust, or station.” And by section 3379 it is further provided that “the pleadings and other proceedings in any action in which a mandamus is claimed shall be the same in all respects as nearly as may be, and costs shall be recovered by either party as in an ordinary action for the recovery of damages.” • It is also declared, in section 3375, that “the plaintiff in any action, except
those brought for the recovery of specific, real, or personal property, may also, as an auxiliary relief, have an order of mandamus to compel the performance of a duty established in such action. But if such duty, the performance of which is sought to be compelled, is not one resulting from an office, trust, or station, it must be one for the breach of which a legal right to damages is already complete at the commencement of the action, and must also be a duty of which a court of equity would enforce the performance.
The proposition that the Des Moines & Minneapolis Railroad Company is a merely nominal and not a real and substantial party to the controversy, is maintained on two grounds: (1) That the relief sought against it rests upon the force of the alleged agreements in reference to the location of its line, which constitute the conditions of the taxes voted, lands granted, and stock subscriptions paid to it, and that mandamus will not lie for the purpose of enforcing the specific performance of personal contracts; (2) and that the Des Moines & Minneapolis Railroad Company is not only exonerated, but disabled, from the performance of the duty sought to be enforced against it, if for such it were amenable to the process of mandamus, by virtue of the lease of its road, property, and franchises to the plaintiff in error, that lease being authorized by section 1300 of the Code of Iowa, as follows: Any such corporation may sell or lease its railway property and franchises, or make joint running arrangements with any corporation owning or operating any connecting railway, and the corporation operating the railway of another shall, in all respects, be liable in the same manner and extent as though such railway belonged to it, subject to the laws of this state." But to sustain the first point, it is necessary to decide the controversy in fav of the Des Moines & Minneapolis Railroad Company, one of the defendants sought to be charged, upon its merits. That necessarily affirms that such a controversy exists; and that, in its turn, proves that the circuit court did not err in holding that it had no jurisdiction to entertain it. * It may be a question whether the remedy by mandamus is not larger and more extensive under the Iowa Code than the plaintiff in error admits. And, at any rate, we cannot strike from the record parts of the plaintiff's case as immaterial, without assuming the point to be proved that we have a right to consider its merits at all; for whether they are material may be the substance of the controversy. It may well be that the scope of the plaintiff's case in. cludes the claim that the railway company, having, on the faith of the alleged agreements, made a location of its line, exhausted its corporate power in reference to its establishment; or that, even if it still had corporate discretion to change it, the circumstances alleged, including the agreements made on condition of its original location, may not have created a corporate duty, enforceable by mandamus, to maintain and permanently operate it. These are questions, certainly, which the plaintiff in the action has the right to raise and have tried in any court of his own selection having proper jurisdiction; and they raise a controversy with the Des Moines & Minneapolis Railroad Company, to which it is a necessary party, unless it is relieved from it by the substitution, in its place, of its lessee, by the law under which it transferred its property and franchises to the plaintiff in error. But that section of the statute already quoted has no such effect. It does not discharge the lessor company from any of its corporate liabilities. It merely imposes a liability upon the lessee while operating it; and if this liability extends, as is claimed, to obligations of the lessor antecedent to the lease, such as that sought to be enforced in the present proceeding, there is nothing in the statute to exclude the idea that it is a joint liability, enforceable against both. If it be said that the liability is that of the lessor, but that it is disabled by the lease from its performance, and that that duty is cast by the lease and the law upor the lessee, then the necessity for a joinder in the action is still more apparent for, to obtain a judgment against the plaintiff in error, requiring it to per
form a duty devolved upon it merely because it has assumed under the law to perform the duties of another, makes it necessary, upon well-settled rules of pleading, also to obtain *a judgment against the latter to declare and determine with conclusive force the existence and limits of the duty to be enforced against its guarantor and substitute. In any view we are justified in taking of the nature of the controversy disclosed by the pleadings in this proceeding, we conclude that both the original defendants are necessary parties to its determination, and that, consequently, the plaintiff in error was not entitled to remove the suit from the jurisdiction of the state court.
The judgment of the circuit court is accordingly affirmed.
(113 U. S. 449)
(March 2, 1885.) 1. LIMITATIONS-ARKANSAS STATUTE Or Non-CLAIMS.
The Arkansas “statute of non-claims" (Dig. Ark. St. 1874, & 98) contains no as: ception in favor of claimants under disability of nonage or otherwise. 2. SAME-CLAIM AGAINST AN ESTATE.
The Arkansas statute of non-claim is a bar against every claim against an estate when the personal representative is in the first instance liable, unless such claim is presented within the term prescribed. Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.
S. 8. Phillips, for appellant. U. M. Rose, for appellees.
MATTHEWS, J. This is a bill in equity filed by the appellants, September 3, 1879. The complainants are the administrator de bonis non of Samuel D. Morgan, deceased, and the children and heirs at law and widow of the intestate, citizens of North Carolina. The female defendants are the children and heirs at law of John G. Morgan, deceased, sued with their husbands, and all citizens of Arkansas. The case alleged in the bill is substantially as follows:
In 1860 a partnership was formed between Samuel D. Morgan and John G. Morgan, who were brothers, the former advancing the means—the latter being bankrupt-for stocking and cultivating a cotton plantation in Arkansas, purchased in the name of the firm, but paid for only in part. Samuel D. Morgan continued to reside in North Carolina. John G. Morgan lived on the plantation in Arkansas, and personally conducted its operations. This he did during several years, including the year 1865, when the plantation was sold, under judicial proceedings, to pay the unpaid purchase money. Samuel: D. Morgan died in January, 1864. It is alleged that large profits were made by John G. Morgan, and particularly that after the death of his brother he continued in possession of the partnership property, conducted its business, and made profits amounting to twenty thousand dollars. He rendered no account at any time of the business, and made no settlement of the partnership affairs, but it is charged that he converted the whole of the partnership property and profits to his own use. John G. Morgan, in 1865, took out letters of administration on the estate of Samuel D. Morgan, in Ashley county, Arkansas, in which the plantation and partnership property were situated. The administration was closed in 1872. John G. Morgan died in 1875, the defendants, his heirs at law, having come into possession of the property in his possession at his decease, more than sufficient to satisfy the claim of the complainants. Of the complainants, Samuel T. Morgan became of age September 8, 1876, and William W. Morgan in May, 1878. They never had a guardian, and allege their
ignorance of the frauds charged to have been practiced against them by John G. Morgan until in 1879. The prayer of the bill is for an account, etc.
The answer of the defendants, though admitting the fact of such a part