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ment of revivor in the state of Maryland after its statute of limitations has run.
A careful review and reconsideration of these authorities show that the common law, the practice under it, and the decisions of the courts that a judgment of revivor may be rendered in the jurisdiction in which the original judgment was recorded upon the issue of a writ of scire facias and its service in such manner as the court may direct upon the defendant who is without the territorial jurisdiction of the court in which the record remains, is undisputed. But there is a controversy among the authorities over the effect of such a judgment in the state of the residence of the defendant at the time the writ of scire facias is served upon him. That controversy is not presented, and will not be presented in this case, and hence it is unnecessary farther to consider it.
But counsel contend that the act of conformity compelled the Circuit Court to adhere to the method of service of the writ of scire facias prescribed by the statutes of Colorado. There are two answers to this contention. The first is that the power of the Circuit Court to issue and to serve its writ of scire facias was derived from the Constitution and the act of Congress, and that it cannot be restrained, limited, or made less efficacious by the statutes of the state. The second is that the act of conformity does not require the Circuit Court to follow the method of service of its writ prescribed by the act of Colorado of 1877. Three sections of the conformity act are discussed by counsel. Section 914, Rev. St. [U. S. Comp. St. 1901, p. 684] is mandatory. It declares that the practice, pleadings, and forms and modes of proceeding in civil causes other than equity and admiralty cases shall conform as near as may be to the practice, pleadings, and forms and modes of proceeding existing in like causes in the state courts. It has no application to this case because it relates exclusively to proceedings before judgment. It may not be futile to notice the fact, however, that this is the most peremptory section of this act, and that nevertheless the Supreme Court and this court have held that strict conformity to the practice and proceedings in the state courts is impracticable, and that this section does not require the courts of the United States to adopt any rule of pleading, practice, or procedure enacted by state statute or announced by the decision of a state court which would restrict their jurisdiction or unwisely encumber the administration of justice in their tribunals. O'Connell v. Reed, 5 C. C. A. 586, 592, 56 Fed. 531, 536; Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602. Thus it has been held that a variance from the state practice in (1) the signature of the summons (Martin v. Criscuola, 10 Blatch. 211, Fed. Cas. No. 9,159; Dwight v. Merritt [C. C.] 4 Fed. 614); (2) its service by a private party (Schwabacker v. Reilly, 2 Dill. 127, Fed. Cas. No. 12,501); (3) 'the time and form and character of the charge to the jury (Railway Co. v. Horst, 93 U. S. 291, 300, 23 L. Ed. 898; Association v. Barry, 131 U. S. 100, 120, 9 Sup. Ct. 755, 33 L. Ed. 60); (4) the motions for new trials (Missouri Pac. Ry. Co. v. Chicago & A. Ry. Co., 132 U. S. 191, 10 Sup. Ct. 65, 33 L. Ed. 309); (5) the effect of a special appearance (Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942); (6) the method of reviewing judgment; and (7) the time within which an answer should be made after service of the summons, and variances in many other respects, constitute no violation of this peremptory section.
Section 915 provides that in common-law cases in the Circuit and District Courts the plaintiff shall be entitled to similar provisional remedies as those provided by the laws of the state in which the courts are held, and that the Circuit and District Courts may by general rules adopt state laws with reference thereto. Section 916 provides that the party recovering a judgment in any common-law cause in the Circuit or District Court shall be entitled to similar remedies on the same by execution or otherwise to reach the property of the judgment debtor to those that are provided in like causes by the laws of the state in which such court is held, or by any such laws as are thereafter enacted which may be adopted by general rules of such Circuit or District Court, and that such courts may from time to time by general rules adopt such state laws as may thereafter be in force in such state. It will be noticed that these sections do not limit the power of the court to determine how its process shall be served after judgment, but only provide that the parties shall be entitled to similai remedies to those provided in like cases by the laws of the state. The Supreme Court has held that only those statutes in force at the time of the passage of this act, to wit, June 1, 1872, were adopted thereby, and that all subsequent statutes, must be adopted by general• rules of the Circuit Courts or they are not in force. Lamaster v. Keeler, 123 U. S. 376, 391, 8 Sup. Ct. 197, 31 L. Ed. 238. This court has held, however, that, in the absence of the proof of any general rule, a general practice may become a rule, and that, when the general practice is to use the remedies provided by the state statutes, the appellate court will presume, in the absence of proof, that these have been adopted by a general practice or a general rule. Logan v. Goodwin, 109 Fed. 490, 495, 43 C. C. A. 658, 663; Citizens' Bank v. Farwell, 56 Fed. 570, 574, 6 C. C. A. 24, 28. It may therefore be assumed in the words of section 916 that a party recovering a judgment in the Circuit Court is “entitled to similar remedies upon the same by execution or otherwise” to those which have been provided by the statutes of Colorado. Now, the statutes of Colorado provide a remedy for the revivor of a judgment by scire facias and prescribe the method of the service of the writ of scire facias. The plaintiff, therefore, might have availed himself of this method of service if it was sufficient. If, however, it was, in the opinion of the Circuit Court, insufficient, that court had the power under the common law and under this statute to adopt and use similar remedies by directing the service to be made in such way as in its opinion would give to the defendant reasonable notice that the suit in which the judgment had been rendered would be continued, and that the judgment would be revived in accordance with the practice at common law under the decisions in Kentucky, Massachusetts, and New Jersey, which portray it. other words, before, and in the absence of, the Colorado statute of 1879,
the United States courts had the power to issue the writ of scire facias and to cause it to be served according to the practice at common law by a personal service of the writ upon the defendant without the territorial jurisdiction of the court in which the record was found and upon such service it had the right to enter its judgment. When the Colorado statute was enacted, it had the option to adopt the specific method of service prescribed by that statute, or to refuse to adopt it. The greater includes the less, and hence it had the right to prescribe the method of service of its writ and to use a similar remedy by such service as it thought proper both under the common law and under the act of conformity. The latter act did not deprive the court below of the right or the power to cause the service of its writ upon two returns of nihil and by such personal service as it deemed necessary to give proper notice to the defendant.
3. Counsel argue that the service of the writ of scire facias upon the defendant personally without the jurisdiction will not sustain the revived judgment under the rule in Pennoyer v. Neff. No decision of any court has been called to our attention to the effect that such service will not sustain a revived judgment in the jurisdiction in which the record of the original judgment is found. The Massachusetts and New Jersey cases hold that it will sustain such judgments both in that and in other jurisdictions. There are decisions that the statute of limitations bars a proceeding of scire facias to revive a judgment within the same time that it bars an action for the same purpose .(Lafayette County v. Wonderly, 92 Fed. 313, 34 C. C. A. 360; Wrightman v. Boone County, 88 Fed. 435, 31 C. C. A. 570), and that an exemption by state statute of a homestead from execution exempts it from execution under section 916, Rev. St. (Fink v. O'Neil, 106 U. S. 272, 1 Sup. Ct. 325, 27 L. Ed. 196). In Kirk v. U. S. (C. C.) 124 Fed. 324, 335, Kirk v. U. S. (C. C.) 131 Fed. 331, Kirk v. U. S., 137 Fed. 753, 70 C. C. A. 187, there was a holding that an action could not be maintained in the state of New York upon a judgment upon a bail bond based upon a service of a writ of scire facias without the district of the record of the bail bond. But a scire facias upon a bail bond is the commencement of a new action, while a scire facias upon a judgment is a continuance of an old action. Moreover, in the Kirk Cases it is evident that the established practice to serve writs of scire facias beyond the jurisdiction of the record and to enter judgments thereon and the decisions in Kentucky, Massachusetts, and New Jersey which portray this practice were not called to the attention of the courts; for the Court of Appeals said that it was cited to no authority holding to the contrary of its conclusion where the proceeding was by scire facias to revive or continue a former proceeding in the nature of an original action. Kirk v. U. S., 137 Fed. 755, 70 C. C. A. 187.
The conclusion of the whole matter is:
(1) The common law and the statute of 2 Westminster were in force in Colorado from 1861, save as otherwise provided by statute.
(2) The Circuit Court of the United States had the power to issue the writ of scire facias to revive a judgment according to the course of the common law under Rev. St., § 716, in the absence of any special statute of the state of Colorado upon the subject.
(3) The statute of Colorado of 1877 granted to that court no new right or remedy, but was cumulative and simply gave to it an additional remedy to one which already existed.
(4) The conformity act (sections 914, 915, 916, Rev. St.) empowered the Circuit Court to use a similar remedy to that provided by the state statute. The Circuit Court of the United States under the common law and the practice thereunder and the statutes to which reference has been made had the jurisdiction to issue a writ of scire facias to revive the judgment in question and to cause it to be served personally without the district upon the defendant in the record within the district.
(5) The effect of the judgment rendered upon this service in the jurisdiction of the present residence of the defendant is left undetermined, and the motion for the rehearing is denied.
WESTINGHOUSE, CHURCH, KERR & CO. V. CALLAGHAN.
(Circuit Court of Appeals, Eighth Circuit. July 10, 1907.)
1. MASTER AND SERVANT-NEGLIGENCE OF FELLOW SERVANTS.
One who enters the employment of another thereby assumes the risk of the negligence of his fellow servants in the performance of all acts which they do while they are not discharging a positive duty of the master.
[Ed. Note.—For cases in point, see Cent, Dig. vol. 34, Master and Serv
ant, § 567.] 2. SAME-DUTY OF CARE FOR SAFETY OF PLACE AND OF APPLIANCES WHERE
CHARACTER NECESSARILY CHANGES WITH WORK, SERVANT'S NOT MASTER'S.
The duty of caring for the safety of a place or of appliances in cases in which the work which the servants are employed to do necessarily changes the character of the place or of the appliances as to safety as the work progresses is the duty .of the servants to whom the work is in
trusted, and it is not the duty of the master. 3. SAME-VICE PRINCIPAL-FELLOW SERVANTS.
All who enter the employment of a common master to accomplish a common undertaking are prima facie fellow servants, although their grades of service are different, and some direct and supervise the men subject to their command and their work, while others perform the labor.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 451, 452.
Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith,
8 C. C. A. 668; Flippen v. Kimball, 31 C. C. A. 286.] 4. SAME-RISK OF SUPERVISION BY FELLOW SERVANT ASSUMED.
The servant assumes the risk of the negligence of his superior fellow servant in the direction of the men and the work to the same extent that he assumes the risk of the negligence of the fellow laborer by his side who is engaged in performing the work.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Serv
ant, $8 567, 570.] 5. SAME-VICE PRINCIPAL-DEPARTMENTS OF BUSINESS.
The homogeneous business of a master cannot be divided into distinct and separate departments under the rule in Railroad Co. v. Baugh, 13 Sup. Ct. 914, 149 U. S. 368, 383, 37 L. Ed. 772, by the testimony to that
effect of his servants, and such testimony is incompetent for this purpose. The nature of the business alone can separate it into departments.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Serv
ant, $8 475-479.] 6. SAME—VICE PRINCIPAL-FACTS-CONCLUSION.
The plaintiff and D. were employed by the defendant in dismantling heavy machinery in the World's Fair buildings. D. was foreman under a superintendent who was under a manager there. The day before the accident a heavy wooden frame 25 feet high had been erected and temporarily fastened in place with guy ropes under the direction of D. to be used to lift and move the heavy parts of an engine. On the day of the accident the plaintiff and four other men were working under D. to permanently secure this frame in place. D. directed the plaintiff to go upon the frame, and, after he had climbed there for the purpose of moving one of the ropes which held this frame in place so that they could use it at another place as a permanent guy rope, D. untied it below, and the frame fell and injured the plaintiff.
Held, D. was not a vice principal, but he was a fellow servant of the plaintiff, and the defendant was not liable for his negligence.
[Ed. Note.--Tor cases in point, see Cent, Dig. vol. 34, Master and Servant, $8 451, 452.] (Syllabus by the Court.)
In Error to the Circuit Court of the United States for the Eastern District of Missouri.
Percy Werner, for plaintiff in error.
Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.
SANBORN, Circuit Judge. Westinghouse, Church, Kerr & Co., à corporation, was engaged in dismantling heavy machinery in the World's Fair buildings at St. Louis. Caldwell was its manager and Oldham its superintendent there. According to the most favorable evidence in the record for the plaintiff below, Callaghan, he had worked for this corporation during the Fair, had left his employment for some time, and about the 1st of December, 1904, he returned and applied to Caldwell for his old job. Caldwell referred him to Oldham, the superintendent who employed him. He then labored there three weeks with a gang of men in the power house taking down props, and Douglas worked in the machinery hall with another gang. Douglas was the foreman, and ordered the work to start promptly and gave the plaintiff his orders. On December 24, 1904, Oldham asked the plaintiff if he would work upon Christmas Day, and offered him tine and a half. He accepted the offer, and reported to Oldham that he was ready to work. Douglas on the night before Christmas ordered him to work and to be out early. On Christmas Day Callaghan, Douglas, Stanley, Dorig, and two other men who had agreed to work on that day appeared and Douglas ordered them to put permanent guy ropes on a heavy wooden frame which had been erected the day before under his direction for the purpose of lifting and removing the heavy materials of which the engines were composed. This frame consisted of four upright pieces of timber 8 by 8, 25 feet long. Upon the east and west sides heavy timbers 14 feet long had been mortised into the up