Opinion of the Court.

GREEN COUNTY v. CONNESS.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DIVISION OF THE WESTERN DISTRICT OF MISSOURI.

Submitted October 9th, 1883.-Decided October 29th, 1883.

Franchises-Municipal Bonds-Municipal Corporation-Railroads.

1. The court adheres to its former rulings in regard to the liability of municipal corporations to innocent holders of the bonds of such corporations, issued in aid of railroads. Douglas v. Pike County, 101 U. S. 677. 2. The rights of such holders are to be determined by the law as it was judicially construed to be when the bonds were put on the market as commercial paper.

3. A consolidation of two railroad corporations merges the franchises and privileges of each in the new company, so that they continue to exist in respect to the roads thus consolidated.

Suit to recover coupons due on bonds issued by the county in payment of a subscription made by virtue of the laws of the State of Missouri, to aid in the construction of a railroad that became consolidated with the Hannibal and St. Joseph Railroad. The authority to lend the aid was obtained before the consolidation, and was exercised after it. The defendant in error was the owner and holder for value of some of the bonds before maturity. Judgment against the county in the court below. Error to reverse that judgment.

The case was submitted by Mr. P. T. Simmons, Mr. Charles W. Thrasher, and Mr. Henry C. Young, on behalf of the plaintiff in error, and by Mr. Jaines S. Bottsford, Mr. Marcus T. C. Williams, and Mr. Robert G. Ingersoll, on behalf of the defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court. Nearly every point in this case has already been decided by this court in the cases of County of Callaway v. Foster, 93 U. S. 567; County of Scotland v. Thomas, 94 U. S. 682; County of Henry v. Nicolay, 95 U. S. 619; County of Schuyler v. Thomas, 98 U. S. 169; County of Cass v. Gillett, 100 U. S. 585; Louisana (City) v. Taylor, 105 U. S. 454; and County of Ralls v. Douglass, 105 U. S. 728. In the case last cited we

Opinion of the Court.

referred to the previous cases, and to the cases in Missouri which they followed, and said:

"Such being the condition of the law on this subject down to April, 1878, we do not feel inclined to reconsider our former rulings, and follow the later decisions of the Supreme Court of, the State in State v. Garroutte, 67 Mo. 445, and State v. Dallas County, 72 Mo. 329, where this whole line of cases was substantially overruled. The bonds involved in this suit were all in the hands of innocent holders when the law of the State was so materially altered by its courts. In our opinion the rights of the parties to this suit are to be determined by the law as it was judicially construed to be when the bonds in question were put on the market as commercial paper.' Douglass v. Pike County, 101 U. S. 677, 687."

From the views thus expressed we are not disposed to

swerve.

One point taken in the present case may not have been presented in any of the cases cited, to wit, that the rights, privileges, and franchises of the Kansas City and Cameron Railroad Company were not expressly declared to pass over to the company with which it might become consolidated, by the law authorizing such consolidation. This law was passed March 11, 1867, and declared as follows:

"It shall be lawful and competent for said company to make such arrangement with any other railroad company to furnish equipments and to run and manage its railroad as it may deem expedient and find necessary, or to lease the same, or to consolidate it with any other company upon such terms as may be deemed just and proper."

In the "finding of facts" made by the court, it is, amongst other things, found as follows:

"That under the provisions of an act of the general assembly of the State of Missouri, approved May 11th, 1867, entitled, &c., the said corporation, then known as the Kansas City and Cameron Railroad Company, on the 21st day of February, in the year 1870, was consolidated with the Hannibal and St. Joseph

Syllabus.

Railroad Company, and all the rights, privileges, franchises, and property of said Kansas City and Cameron Railroad Company were, by said consolidation, transferred to the Hannibal and St. Joseph Railroad Company, which then and thereby became the owner of and possessed of the same."

If only a sale of the road to another company had been authorized and made, then it might very plausibly have been contended that the purchasing company took and held it under its own charter only, without the franchises and privileges connected with it in the hands of the vendor company; but "consolidation" is not sale, and when two companies are authorized to consolidate their roads, it is to be presumed that the franchises and privileges of each continue to exist in respect to the several roads so consolidated. This point was considered in the case of Tomlinson v. Branch, 15 Wall. 460, and Branch v. City of Charleston, 92 U. S. 677, and was decided in accordance with this view. This being so, the authority given to consolidate, “upon such terms as may be deemed just and proper," would include the power to transfer to the consolidated company the franchises and privileges connected with the road, if the law itself did not have that effect; and the court has found that this was done. We think, therefore, that the point is not well taken.

The judgment of the circuit court is affirmed.

HASKINS v. ST. LOUIS & SOUTHEASTERN RAILWAY COMPANY & Another.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE.

Submitted October 9th, 1883.-Decided October 29th, 1883.

Appeal-Appeal Bond-Certiorari.

The authority conferred by R. S., § 1000, to certify to the responsibility of an obligor on an appeal bond cannot be delegated. After close of term, citation must issue and be served before the security can be approved and the appeal completed so as to givo jurisdiction above.

Opinion of the Court.

A receiver was appointed in a suit in equity commenced below for the foreclosure of a railway mortgage. One Haskins, in the employ of the receiver, struck his head on the timber of a bridge while on duty on a train in motion, and was killed. Leave was granted to his widow to prosecute her claim for damages in the foreclosure suit. After hearing, the claim was disallowed. Appeal taken, and the case submitted by appellant, there being no appearance for the appellees.

Mr. F. E. Williams for appellant.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. We have no jurisdiction in this case. The appellee has not appeared and has never been served with a citation. The decree was entered on the 14th of June, 1879, and at the foot of the entry is the following: "Petitioner prays an appeal, which is granted upon bond and security being given, according to law, within thirty days." A copy of what purports to be an appeal bond, filed on the 3d of July, 1879, is found in the transcript, but there is no evidence that it was ever approved or taken as good and sufficient security by the court or any justice or judge thereof. A commissioner of the circuit court has certified that he knew the obligors to be good and responsible for any cost that might accrue in the cause, but that is not enough. Sec. 1000 of the Revised Statutes requires the justice or judge signing the citation to take the security. This power cannot be delegated to the clerk or to a commissioner. O'Reilly v. Edrington, 96 U. S. 724, 726. If the appeal is allowed in open court the security may be taken by the court, and no citation is necessary, but if the security is not given until after the term is over, a citation must be issued and served. Sage v. Railroad Co., 96 U. S. 712, 715. Unless an appellee voluntarily appears, we cannot proceed against him if the record does not show affirmatively that he has been brought within our jurisdiction by proper notice.

The appeal is dismissed for want of jurisdiction.

Opinion of the Court.

OPELIKA CITY v. DANIEL.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA.

Submitted October 10th, 1883.-Decided October 29th, 1883.

Appeal Jurisdiction-Practice.

A brought suit against B upon bonds aggregating $24,000, on which over $5,000 interest was claimed as overdue. Before trial A, by leave of court, amended so as to include only 90 of the coupons originally sued on. took judgment for less than $5,000. Held, that the amendment was within the discretion of the Court below, and this court has no jurisdiction.

He

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The action below was brought originally upon 119 interest coupons cut from 24 bonds of the city of Opelika. The bonds were in the aggregate for $24,000, and the amount claimed to be due on the coupons was more than $5,000. At first a demurrer was filed to the complaint. This being overruled, the validity of the bonds was put in issue by various pleas. Before trial, the plaintiff, Daniel, asked and obtained leave to amend his complaint so as to include only ninety of the coupons originally sued for. After the amendment a jury was empanelled, and on the trial the ninety coupons only were put in evidence. The verdict was for $4,755.64, and a judgment was entered thereon for that amount and no more. To reverse that judgment this writ of error was brought. At a former term, Daniel moved to dismiss because the value of the matter in dispute did not exceed $5,000. That motion was continued for hearing with the case on its merits.

We decided at the last term in Elgin v. Marshall, 106 U. S. 578, that our jurisdiction depends on "the matter which is directly in dispute in the particular cause in which the judg ment or decree sought to be reviewed has been rendered," and that we are not permitted, "for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties." That, like this, was a suit on coupons, and the judgment was for less than $5,000, although the bonds from which they were cut amounted to