Dougherty v. Payne

Fifth Circuit

Dougherty v. Payne

291 F. 60, 1923 U.S. App. LEXIS 2820

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 23, 1923

DocketNo. 4036

StatusPublished

Cited by3 cases

This text of 291 F. 60 (Dougherty v. Payne) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dougherty v. Payne, 291 F. 60, 1923 U.S. App. LEXIS 2820 (5th Cir. 1923).

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Opinion

PER CURIAM.

April 6, 1920, plaintiffs in error, brought suit for malicious prosecution against Walker B. Hines, as Director General of Railroads. Hines having resigned as Director General, his successor, John Barton Payne, was substituted as defendant. A demurrer to the declaration having been sustained, on May 18, 1922, a judgment final thereon was entered.

March 26, 1921, James C. Davis succeeded Payne as Director General of Railroads and as Agent, by virtue of the President’s proclama[61]*61tion, as authorized by section 206 (a) of the Transportation Act^ of 1920 (41 Stat. 456). But no motion has been made by the plaintiffs in error to substitute Davis, in his capacity of Director General of Railroads, as defendant, and no such substitution has been. made. Upon that ground, and in reliance upon the Act of Congress of February 8, 1899, 30 Stat. 822 (Comp. St. § 1594) on February 23, 1923, the defendant in error filed a motion to dismiss the writ of error herein.

The Act of March 3, 1923, entitled "An act to amend Section 206 of the Transportation Act, 1920,” provides, among other things, that suits such as this is shall not abate by reason of the resignation of the Director General of Railroads, but may be prosecuted to final judgment by substituting the agent then in office under designation by the President, and that, upon proper motion within one year from the date of the act, suits which have been abated or dismissed in pursuance of the act of 1899 shall be reinstated.

The motion to dismiss the writ of error is therefore denied.

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PER CURIAM.

April 6, 1920, plaintiffs in error, brought suit for malicious prosecution against Walker B. Hines, as Director General of Railroads. Hines having resigned as Director General, his successor, John Barton Payne, was substituted as defendant. A demurrer to the declaration having been sustained, on May 18, 1922, a judgment final thereon was entered.

March 26, 1921, James C. Davis succeeded Payne as Director General of Railroads and as Agent, by virtue of the President’s proclama[61]*61tion, as authorized by section 206 (a) of the Transportation Act^ of 1920 (41 Stat. 456). But no motion has been made by the plaintiffs in error to substitute Davis, in his capacity of Director General of Railroads, as defendant, and no such substitution has been. made. Upon that ground, and in reliance upon the Act of Congress of February 8, 1899, 30 Stat. 822 (Comp. St. § 1594) on February 23, 1923, the defendant in error filed a motion to dismiss the writ of error herein.

The Act of March 3, 1923, entitled "An act to amend Section 206 of the Transportation Act, 1920,” provides, among other things, that suits such as this is shall not abate by reason of the resignation of the Director General of Railroads, but may be prosecuted to final judgment by substituting the agent then in office under designation by the President, and that, upon proper motion within one year from the date of the act, suits which have been abated or dismissed in pursuance of the act of 1899 shall be reinstated.

The motion to dismiss the writ of error is therefore denied.

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291 F. 60, 1923 U.S. App. LEXIS 2820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dougherty-v-payne-ca5-1923.

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