McCluskey v. Marysville & Northern Ry. Co., 243 U.S. 36 (1917)

McCluskey v. Marysville & Northern Railway Company

No. 166

Argued January 30, 31, 1917
Decided March 6, 1917
243 U.S. 36

ERROR TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

The course of business of a company engaged in logging and milling timber consisted in carrying its logs from its own timber land within a state over its own logging railroad to tidewater, in the same state, in selling there a part to others who towed them away and resold them to purchasers within and without the state, and in towing the rest to its mills in the same state, milling them at the latter place and then disposing by sale of their products partly in local markets and partly in other states and countries. Held that the transportation of the logs by the railroad was not interstate or foreign commerce, and that an employee of the railroad, injured while engaged in unloading some of them at the tidewater terminus, was not employed in such commerce within the federal Employers’ Liability Act.

A plaintiff in an action for personal injuries based on the federal Employers’ Liability Act died while the case was pending in the circuit court of appeals. Writ of error to review an adverse judgment of that court having been subsequently sued out in his name and citation issued and served, attorneys for both sides stipulated that his administrator might be substituted. Substitution, however, was refused by the court of appeals upon the ground that the writ had deprived it of jurisdiction. Upon a motion to dismiss upon the ground that the writ was wrongfully allowed and the administrator not properly a party, held that the defect of the proceedings was, at most, an irregularity which, in view of the stipulation, was waived.

218 F. 737 affirmed.

After judgment against plaintiff in the court below, the writ of error from this Court was allowed by a judge of that court March 15, 1915, upon a petition therefor made by plaintiff’s attorney in plaintiff’s name. Citation was issued conformably, March 22, 1915, of which service was admitted by defendants’ attorneys March 23d. In April following, attorneys for both sides stipulated that the plaintiff died February 28, 1915, while the cause was pending in the court below, that his administrator was duly appointed March 23, 1915, and that the administrator might be substituted, and application for an order of substitution was made accordingly by plaintiff’s attorney, but was refused by the court below upon the ground that issuance of the writ of error had deprived it of jurisdiction over the cause. The facts are stated in the opinion.