Mr. Presiding Justice Bigelow
delivered the opinion of the court.
Of the four errors assigned we deem it necessary to consider but one—the giving of the instruction to the jury to find a verdict for the defendant.
It is said by counsel for plaintiff in error, in their statement of the case, that this suit was originally brought by plaintiff in error against Harmon and Bobinson, the receivers of the Baltimore & Ohio Southwestern Bailway Company, as well as against that company, before the receivers •were discharged, and that the plaintiff afterward dismissed his case against the receivers and the railway company, and plaintiff, on his own motion, substituted the present defendant in place of the original defendants.
A contention of counsel for defendant in error is, that the deceased, at the time he was killed, was not exercising ordinary care for his own safety. Whether he was or not we deem it unnecessary to determine.
The only evidence offered in the case was introduced by the plaintiff; the defendant offered none. The evidence shows that the Baltimore & Ohio Southwestern Bail way Company was made up of several different lines of road in this State, which several lines had been mortgaged separately. These mortgages having fallen due and remaining unpaid, proceedings were begun by the several holders of the mortgage indebtedness, in the Circuit Court of the United States for the Southern District of Illinois, to foreclose the mortgages, and such proceedings were had in the cases, which were consolidated together, that on or about the 27th of May, 1899, a decree of foreclosure of the several mortgages was made and entered by the court, and the court appointed a special master commissioner to sell the railroad, its property and franchises at public vendue, in case default was made in the payment of the several sums of money found due by the court, within the short day fixed by the court; and the amounts found due and remaining unpaid, the special master commissioner, after having duly advertised the entire property and franchises for sale, on the 10th of July, 1899, sold it to Edward R. Bacon, George Hoadly, and J. Chauncey Hoffman, for the sum of $3,510,000, and a certificate of purchase of the entire property and franchises of the Baltimore & Ohio Southwestern Railway Company situated in this State, was executed by the special master commissioner to Bacon, Hoadly and Hoffman, as provided by the decree of the court. The decree contained among others, two clauses, as follows :
“ The said master commissioner shall offer the property for sale, subject to the payment by the purchaser in each case of the portion of any indebtedness incurred by the receivers herein, and their fees properly chargeable against the property purchased, and such other claims as the court has heretofore or may hereafter order or decree to be prior or superior to the lien of the said mortgages or either of them on said property or any part thereof.”
“ That within thirty days from the confirmation of said sale or sales, or such further time as the court may allow on application of the purchaser for good cause shown, the purchaser or purchasers of said property shall complete payment of the entire amount bid to the said master commissioner; and that on such payment, the said purchaser or purchasers, or his or their assigns, shall be entitled to receive a deed or deeds of conveyance thereof from the said master commissioner, and from the other parties to this cause as herein provided, and to receive possession of the property so purchased from the parties holding possession of the same, subject, however, to the payment of the portion of any indebtedness incurred by the receivers, and their fees properly chargeable to the property so purchased, and of such other claims as the court heretofore or may hereafter order or decree prior or superior to the lien of said mortgages or either of them on said property or any part thereof, and the court reserves jurisdiction over said property, notwithstanding such deed or deeds or delivery of possession, for the purpose of enforcing such payment.”
The sale was confirmed by the court on July 21, 1899.
On the 28th of July, 1899, Bacon, Hoadly and Hoffman assigned their certificate of purchase, issued to them by the special master commissioner, to the St. Louis, Springfield and Vincennes Bailway Company, a corporation organized under the laws of this state, and on the same date the special master commissioner executed a deed of the railroad with all of the property, rights, franchises and privileges which were of the Baltimore & Ohio Southwestern Bailway Company to the St. Louis, Springfield & Vincennes Bailway Company.
Under and by virtue of a law of this state entitled, “ An act concerning the rights, powers and duties of certain corporations therein mentioned, authorizing the sale and transfer of any railroad or railroad and toll-bridge, and other property, franchises, immunities, rights, powers and privileges connected therewith or in respect thereto, of any corporation in this state to a corporation of another state, and prescribing’ the rights, powers, duties and obligations of the purchasing company,” (Laws of Illinois, 1899, p. 116,) the St. Louis, Springfield & Vincennes Bailway Company, on the 29th of July, 1899, sold and by deed conveyed, all the property, franchises, rights and privileges that it had acquired by the deed of the special master commissioner, to the Cincinnati, Louisville & Vincennes Bailway Company, a corporation duly organized under the laws of the State of Indiana. Immediately thereafter, upon the 1st day of August, 1899, the Cincinnati, Portsmouth & Parkersburg Bail way Company, a corporation created and existing under the laws of the State of Ohio, and the Cincinnati, Louisville & Vincennes Railway Company, were duly consolidated, thus forming The Baltimore & Ohio Southwestern Railroad Company (defendant in error), and on the same date, in accordance with a decree of the court, the Baltimore & Ohio Southwestern Railway Company, deeded, by deed of quitclaim, to the Baltimore & Ohio Southwestern Railroad Company, all interest in and to the said railroad property, and the receivers surrendered and delivered the railroad, and all of its property, rights and franchises, to defendant in error.
In the face of the evidence furnished by plaintiff in error, we are unable to see how it can be claimed by his counsel that what was done was but a reorganization of the original railway company, under the name of The Baltimore & Ohio Southwestern Railroad Company, nor are we able to understand how the property, rights and franchises of the Baltimore & Ohio Southwestern Railway Company became, in a legal sense, amalgamated with the property, rights and franchises of any other railroad company. By the sale of the property, rights and franchises of the Baltimore & Ohio Southwestern Railway Company, it is true, they became the property of the purchasers, and passed to their assignees, but the purchase of a railroad, with its property and franchises, by one or more persons, is one thing, and the consolidation of the property of a railroad company and its franchises, with the property and franchises of another railroad company is another and altogether different thing.
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Mr. Presiding Justice Bigelow
delivered the opinion of the court.
Of the four errors assigned we deem it necessary to consider but one—the giving of the instruction to the jury to find a verdict for the defendant.
It is said by counsel for plaintiff in error, in their statement of the case, that this suit was originally brought by plaintiff in error against Harmon and Bobinson, the receivers of the Baltimore & Ohio Southwestern Bailway Company, as well as against that company, before the receivers •were discharged, and that the plaintiff afterward dismissed his case against the receivers and the railway company, and plaintiff, on his own motion, substituted the present defendant in place of the original defendants.
A contention of counsel for defendant in error is, that the deceased, at the time he was killed, was not exercising ordinary care for his own safety. Whether he was or not we deem it unnecessary to determine.
The only evidence offered in the case was introduced by the plaintiff; the defendant offered none. The evidence shows that the Baltimore & Ohio Southwestern Bail way Company was made up of several different lines of road in this State, which several lines had been mortgaged separately. These mortgages having fallen due and remaining unpaid, proceedings were begun by the several holders of the mortgage indebtedness, in the Circuit Court of the United States for the Southern District of Illinois, to foreclose the mortgages, and such proceedings were had in the cases, which were consolidated together, that on or about the 27th of May, 1899, a decree of foreclosure of the several mortgages was made and entered by the court, and the court appointed a special master commissioner to sell the railroad, its property and franchises at public vendue, in case default was made in the payment of the several sums of money found due by the court, within the short day fixed by the court; and the amounts found due and remaining unpaid, the special master commissioner, after having duly advertised the entire property and franchises for sale, on the 10th of July, 1899, sold it to Edward R. Bacon, George Hoadly, and J. Chauncey Hoffman, for the sum of $3,510,000, and a certificate of purchase of the entire property and franchises of the Baltimore & Ohio Southwestern Railway Company situated in this State, was executed by the special master commissioner to Bacon, Hoadly and Hoffman, as provided by the decree of the court. The decree contained among others, two clauses, as follows :
“ The said master commissioner shall offer the property for sale, subject to the payment by the purchaser in each case of the portion of any indebtedness incurred by the receivers herein, and their fees properly chargeable against the property purchased, and such other claims as the court has heretofore or may hereafter order or decree to be prior or superior to the lien of the said mortgages or either of them on said property or any part thereof.”
“ That within thirty days from the confirmation of said sale or sales, or such further time as the court may allow on application of the purchaser for good cause shown, the purchaser or purchasers of said property shall complete payment of the entire amount bid to the said master commissioner; and that on such payment, the said purchaser or purchasers, or his or their assigns, shall be entitled to receive a deed or deeds of conveyance thereof from the said master commissioner, and from the other parties to this cause as herein provided, and to receive possession of the property so purchased from the parties holding possession of the same, subject, however, to the payment of the portion of any indebtedness incurred by the receivers, and their fees properly chargeable to the property so purchased, and of such other claims as the court heretofore or may hereafter order or decree prior or superior to the lien of said mortgages or either of them on said property or any part thereof, and the court reserves jurisdiction over said property, notwithstanding such deed or deeds or delivery of possession, for the purpose of enforcing such payment.”
The sale was confirmed by the court on July 21, 1899.
On the 28th of July, 1899, Bacon, Hoadly and Hoffman assigned their certificate of purchase, issued to them by the special master commissioner, to the St. Louis, Springfield and Vincennes Bailway Company, a corporation organized under the laws of this state, and on the same date the special master commissioner executed a deed of the railroad with all of the property, rights, franchises and privileges which were of the Baltimore & Ohio Southwestern Bailway Company to the St. Louis, Springfield & Vincennes Bailway Company.
Under and by virtue of a law of this state entitled, “ An act concerning the rights, powers and duties of certain corporations therein mentioned, authorizing the sale and transfer of any railroad or railroad and toll-bridge, and other property, franchises, immunities, rights, powers and privileges connected therewith or in respect thereto, of any corporation in this state to a corporation of another state, and prescribing’ the rights, powers, duties and obligations of the purchasing company,” (Laws of Illinois, 1899, p. 116,) the St. Louis, Springfield & Vincennes Bailway Company, on the 29th of July, 1899, sold and by deed conveyed, all the property, franchises, rights and privileges that it had acquired by the deed of the special master commissioner, to the Cincinnati, Louisville & Vincennes Bailway Company, a corporation duly organized under the laws of the State of Indiana. Immediately thereafter, upon the 1st day of August, 1899, the Cincinnati, Portsmouth & Parkersburg Bail way Company, a corporation created and existing under the laws of the State of Ohio, and the Cincinnati, Louisville & Vincennes Railway Company, were duly consolidated, thus forming The Baltimore & Ohio Southwestern Railroad Company (defendant in error), and on the same date, in accordance with a decree of the court, the Baltimore & Ohio Southwestern Railway Company, deeded, by deed of quitclaim, to the Baltimore & Ohio Southwestern Railroad Company, all interest in and to the said railroad property, and the receivers surrendered and delivered the railroad, and all of its property, rights and franchises, to defendant in error.
In the face of the evidence furnished by plaintiff in error, we are unable to see how it can be claimed by his counsel that what was done was but a reorganization of the original railway company, under the name of The Baltimore & Ohio Southwestern Railroad Company, nor are we able to understand how the property, rights and franchises of the Baltimore & Ohio Southwestern Railway Company became, in a legal sense, amalgamated with the property, rights and franchises of any other railroad company. By the sale of the property, rights and franchises of the Baltimore & Ohio Southwestern Railway Company, it is true, they became the property of the purchasers, and passed to their assignees, but the purchase of a railroad, with its property and franchises, by one or more persons, is one thing, and the consolidation of the property of a railroad company and its franchises, with the property and franchises of another railroad company is another and altogether different thing.
There is a total failure of evidence tending to show that the Baltimore & Ohio Southwestern Railway Company was ever consolidated, in a legal sense, with any other railroad or railway company or companies, whatever.
Besides the contention of appellant’s counsel that the suit is properly brought against the Baltimore & Ohio Southwestern Railroad Company, because this latter company, the defendant in error here, is but a reorganization of the Baltimore & Ohio Southwestern Railway Company, counsel for plaintiff in error further contend that the decree of foreclosure of the mortgages, and the sale of the property thereunder, gave plaintiff in error the right to substitute the defendant in error as a party defendant to this suit at law, in the place of the receivers of the railway company. The Circuit Court of the United States in its decree did not undertake to clothe any creditor of the railway company with the power or right to bring suit against any purchaser or purchasers of the property and franchises of the railway company. What the court did was a direction to the master commissioner to “ offer the property for sale, subject to the payment by the purchaser in each case of the portion of any indebtedness incurred by. the receivers herein, and their fees properly chargeable against the property purchased, and such other claims as the court has heretofore, or may hereafter order or decree, to be prior or superior to the lien of the said mortgages, or either of them, on said property, or any part thereof.”
The clear intention and meaning of the court in rendering this decree was not to open a door for litigation, over the doings of the receivers, through any court aside from itself.
Whether, when plaintiff in error dismissed the receivers out of the case and voluntarily substituted the present defendant in their stead, he did a wise thing, is not a matter before this court for consideration.
There is no allegation in the declaration that defendant in error ever promised or agreed to assume any liabilities of the Baltimore & Ohio Southwestern Railway Company, or of its receivers, although counsel for appellant incorrectly assume that it did so, and, to sustain their position, refer to the final order of the United States Court, entered February 1, A. D. 1891, discharging the receivers, when they knew that this decretal order was not offered in evidence on the trial of the case, and is no part of the evidence heard by the jury in the case, and for this court to consider it, as insisted upon by counsel, would be to consider a matter entirely foreign to the case.
There was no evidence before the jury on which a verdict for the plaintiff could have been sustained, and the court did not err in directing the jury to find a verdict for the defendant.
The judgment of the Circuit Court is affirmed.