Cincinnati, N.O. & Tex. Pac. Ry. Co. v. Slade, 216 U.S. 78 (1910)

Cincinnati, New Orleans and Texas Pacific

Railway Company v. J. Slade and E. M. Pless
No. 79

Argued January 14, 1910
Decided January 31, 1910
216 U.S. 78

ERROR TO THE COURT OF APPEALS

OF THE STATE OF GEORGIA

Syllabus

Where the state court decides that, under the law of the state, the constitutionality whereof is not attacked, the action of defendant in giving replevy bond and answering amounted to a general appearance and waiver of objection to jurisdiction based on a federal ground, the ruling of general appearance rests on a nonfederal ground sufficient to sustain it, and cannot be reviewed by this Court. Where plaintiff in error did not set up in the state court the contention that the contract of interstate shipment should be construed according to the act of Congress regulating interstate shipments instead of by the law of the state where made, but, on the contrary, contended that it should be construed by the law of the destination and trial of the case, the record presents no federal question properly set up in the court below that can be considered by this Court.

Writ of error to review 3 Ga.App. 400 dismissed.

The Cincinnati, New Orleans & Texas Pacific Railway Company -- hereafter referred to as the Railway Company -- is a corporation organized under the laws of Ohio, and operates lines of railroad in several states other than Georgia.

On May 14, 1907, Pless & Slade, a partnership, asserting a claim against the railway company, resulting from the alleged negligent carriage of a car load of horses and mules, received at a point in Kentucky for through carriage to Pless & Slade at Cordele, Georgia, procured an attachment to be issued from the City Court of Cordele, under which a box car belonging to the company was seized. The railway company gave "a replevy bond, or a bond to release the attachment . . . and on the filing of such bond the attachment became dissolved." The railway company, specially entering its appearance, moved to quash first upon the ground that it was a foreign corporation, and had no agent, office, or place of business, and transacted no business, in the State of Georgia, and was not susceptible of being therein sued, and second because the box car came into the state under a contract of interstate shipment, and could not be attached in Georgia without imposing a direct burden upon interstate commerce, in violation of the laws of the United States regulating that subject. On July 26, 1907, the plaintiffs demurred to the motion to quash and filed an answer to the same, and on the same day filed their declaration in attachment. On August 3, 1907, the railway company, appearing only for that purpose, filed a formal plea to the jurisdiction of the court. In this plea, with great elaboration, the grounds previously asserted in the motion to quash were reiterated. The plaintiffs demurred to this plea, and also answered the same. Both demurrers, the one to the motion to quash and the other to the plea to the jurisdiction, were heard together. The demurrers were sustained, and exceptions were only reserved. Thereupon the railway company both demurred to and answered the declaration in attachment. The demurrer challenged the sufficiency of the declaration to show jurisdiction in the court because it was not averred that the railway company was transacting business or had an office, agent, or place of business in the county where the suit was brought or in the State of Georgia; that it was not charged that the Acts of negligence for which recovery was sought had been committed in the State of Georgia, and because, on the contrary, the contract relied upon in the declaration was stated therein to have been made in Kentucky. The answer, after reserving the benefit of the demurrer, traversed the declaration on the merits, and, as a special defense, again set up that the railway company had no line of road in the state, or agent therein, and transacted no business in Georgia, and therefore was not subject to be therein sued. Concerning the box car which had been attached, it was specially set up that, in order to save breaking bulk and reloading at connecting points, the railway company had an agreement with connecting carriers by which its cars, when loaded on its line with freight for points in Georgia, should not be unloaded at the terminus of the company’s road, but should be transferred to the connecting carrier for delivery in Georgia, such carrier coming under an obligation to return the cars with all possible dispatch. It was alleged that the car in question was delivered under these circumstances, and was hence not subject to attachment in Georgia.

The demurrer was overruled. The court also sustained a demurrer filed on behalf of the plaintiffs to the special defenses set up by the railway company in its answer, to which we have previously adverted. To these rulings of the court, exceptions were noted by the railway company and made part of the record. The case went to trial upon the merits, and at the close of the evidence, the court directed a verdict for the plaintiffs. The case was taken to the court of appeals of Georgia, where the judgment was affirmed. 3 Ga.App. 400. This writ of error to the court of appeals was allowed by the chief judge upon the ground that the court of appeals was the highest court of the state in which a decision in the suit could be had, and upon the averments made in the petition for the allowance of a writ of error, that grounds of federal cognizance were presented by the record.