No. 79.

216 U.S. 78 (1910)


Supreme Court of United States.

Decided January 31, 1910.

Attorney(s) appearing for the Case

Mr. D.A.R. Crum, with whom Mr. J. Gordon Jones was on the brief, for plaintiff in error.

Mr. Joseph T. Hill for defendant in error.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

In the trial on the merits it was shown that a shipment of live stock had been made from a point in Kentucky under a contract with the railway company for delivery at Cordele, Georgia, the contract contemplating the movement of the shipment over the line of the railway company and the transfer by it of the car to connecting carriers for delivery at the point of destination. It was this contract of shipment out of which it was alleged the claim arose which was the basis of the attachment. The railway company offered in evidence the written contract, and then rested its defense. This contract of shipment contained various provisions limiting the common law liability of the railway company. Thereupon the record recites as follows:

"Mr. Hill offers in evidence for plaintiff section 196 of the constitution of the State of Kentucky, as follows:

"`Transportation of freight and passengers by railroad, steamboat, or other carrier, shall be so regulated, by general law, as to prevent unjust discrimination. No common carrier shall be permitted to contract for relief from its common law liability.'

"Mr. Jones [for railway company] objects, that the regulation as provided for in this section should accompany it, and unless it does it is irrelevant and inadmissible; that it is merely a paragraph of the constitution of the State giving the legislature and laws. He further objects to it on the ground that this suit is brought under the Georgia laws, and is not a suit on a Kentucky contract.

"Objection overruled.

"Plaintiff announces closed.

"Mr. Hill moves the court to direct a verdict for plaintiff for the amount sued for.

"Mr. Jones [for railway company] insists that the contract offered is a legal contract, and forms an issue for the jury to pass upon."

Concerning the questions of jurisdiction raised by the pleadings, the Court of Appeals, to which the case was taken, held as follows: 1st. That by the requirements of § 4575 of the Georgia Civil Code, and by the application of the law of the State as expounded in repeated decisions of the Supreme Court, "the giving of the replevy bond was a general appearance by the defendant, dissolving the attachment and converting it from an action in rem into an action in personam." 2d. That under the law of the State, "the filing of a general demurrer or an answer not under protestation, and without expressly reserving the special appearance, waives the special appearance."Applying these general propositions, it was decided that "the defendant having, by filing a replevy bond, a demurrer, and an answer, submitted itself personally to the jurisdiction of the court, with the right to make only such defenses as it could have made if it had been personally served with process, and the surety on the replevy bond making no complaint against the judgment, it becomes immaterial whether the levy of the attachment was regular or not, or whether the property seized was subject to levy; and these questions are therefore not for decision. King v. Randall, 95 Georgia, 449. The defendant had the right to replevy irrespective of whether the property was subject or not subject to the levy. Swift v. Tatner, 89 Georgia, 660, 673." In affirming the judgment on the merits, the contract of shipment out of which the controversy arose was treated as a Kentucky contract. Certain limitations therein were held to be void under the laws of that State, and other provisions which were held not to be repugnant to those laws were decided not to exempt the railway company from liability.

The assignments of error are eleven in number, but when the reiterations which they contain are put out of view it is apparent on their face that, in their broadest aspect, they embrace only two questions of a Federal nature: First, that the trial court did not acquire jurisdiction over the railway company, as the levy upon the box car was a direct burden upon and at all events was repugnant to the legislation of Congress on the subject of interstate commerce; and, second, that a right under the same legislation to the benefit of the laws of the United States in construing the contract of shipment upon which the cause of action arose was denied by the decision of the state court. But as we have previously shown, on the face of the record it is apparent that the Court of Appeals did not pass upon the question whether the levy of the attachment was regular or whether the property seized was subject to levy. It held, construing the statutes of Georgia relating to attachments and the decisions of the highest court of the State that it was unnecessary to decide those questions, because they had been waived by the conduct of the railway company in giving a replevy bond and answering &c., without protestation. It follows that no Federal question is presented as to the issue concerning jurisdiction, since the ruling below was based exclusively upon a non-Federal ground broad enough to sustain it without considering or referring to the alleged Federal question. It is besides to be observed that the plaintiff in error in argument does not question the correctness of the deductions drawn by the court below from the prior decisions of the Supreme Court of the State of Georgia. Indeed, there is nothing in the record showing that any question was raised below as to the repugnancy to the Constitution of the United States of the statute of Georgia concerning the giving of a bond to release attached property as construed by the Supreme Court of Georgia. See, in this connection, the cases of York v. Texas, 137 U.S. 15, 20; Kauffman v. Wooters, 138 U.S. 285, and Mexican Central R.R. Co. v. Pinkney, 149 U.S. 194, 205.

The second proposition is, that, as the court below construed the contract of shipment upon which the cause of action depended by the law of Kentucky where it was made instead of by the laws of the United States regulating interstate commerce, thereby a Federal right was denied. But this contention is at once disposed of by saying that the assertion of Federal right upon which it rests finds no support in the record, as it does not appear to have been urged below or called to the attention of or decided by the appellate court. On the contrary, as we have previously shown, the contention made at the trial by the railway company was not that the contract of shipment was to be governed by the laws of the United States, but that it should be treated as a Georgia and not as a Kentucky contract.

From these considerations it results that the record presents no Federal question, and the writ of error is therefore dismissed for want of jurisdiction.



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