Wright v. Gossett

15 Ind. 119, 1860 Ind. LEXIS 312

• Court: Indiana Supreme Court
• Decided: November 30, 1860
• Status: Published

Opinion

Hanna, J.

The only point presented in this case is, whether a judgment, and execution taken out on it, are nullities, where the judgment was against the lessees of a railroad company, operating the road, and the service of the summons was by copy delivered to the conductor of a train of cars running upon said road; the action appearing to be for an animal killed by the train; and there being no appearance thereto.

The solution of this inquiry depends upon the construction which should be placed upon the act of 1853 (Acts 1853, p. 113), which is embodied at length in the case of The Madison and Indianapolis Railroad Co. v. Whiteneck, 8 Ind. 217, by the first section of which it is provided, that the justice shall “ cause at least ten days’ notice to be served on the railroad company defendant, by service of summons by copy on any conductor,” &c.

Would a ease be embraced in this act where individuals, or an association of individuals, or joint-lessees, were operating a road; or is it confined to an action against the incorporated company ?

We think the statute is confined to a proceeding against the corporation. Whether the road can legally be placed in the hands of a lessee, or not, we need not decide in this case. What we do decide is, that a service of process upon a conductor of a train, upon a railroad, will not authorize a judgment, when there is, no appearance, against .individuals, although they may represent themselves to be lessees, and to have charge and control of the rolling stock upon the road. Whether it would be a sufficient service upon the corpora-^on *n a stl^ aSainst Rj notwithstanding the road might bo operated by others, is a question not before us.

If. L. Bundy, for appellants. James Brown, J. H. Mellett and E. B. Martindale, for appellees.

^ie below overruled a demurrer to the answer, setting up a judgment following such service, the judgment will have to be reversed.

Per Ouriam.

The judgment is reversed, with costs. Cause remanded, &c.