1. One who, as Federal Agent, suffered judgment in an action
under the Employers' Liability Act for death of a railroad employee
occurring during federal control ceased to be liable and was
without standing to invoke a review of the judgment when he ceased
to be Federal Agent.
2. When, in such a case, a writ of certiorari to a state supreme
court was petitioned for by both the retired Federal Agent and the
surety on his appeal bonds below, who had been adjudged to pay
costs, and the certiorari was granted,
held:
(1) That the writ must be dismissed as to the main petitioner.
P.
280 U.S. 408.
(2) That the adjudication of liability for costs, which had not
been made a ground of complaint, did not enable the surety to
complain of the judgment in other particulars.
Id.
(3) That the Federal Agent's successor in office could not be
substituted in this court upon motion made after the statutory time
within which he might have invoked a review of the judgment by
certiorari had expired.
Id.
3. The provisions relating to substitution, which were added to
§ 206 of the Transportation Act by Act of March 3, 1923, do
not enable a former Federal Agent to invoke a review by this Court
of a judgment which is of no legal concern to him, nor do they
modify or enlarge the statutory period for involving the reviewing
powers of this Court.
Id.
Certiorari to 118 Tex 303 dismissed.
Certiorari,
post, p. 539, to review a judgment of the
Supreme Court of Texas affirming a judgment against the Federal
Agent in an action under the Federal Employers' Liability Act.
Page 280 U. S. 407
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This proceeding relates to an action brought in a state court of
Texas to recover for the death of a railroad employee occurring
during federal control -- while the railroad was being operated by
the Director General. The action was begun by the deceased's widow,
in her personal right, against Walker D. Hines, as Director
General, but, by amendments and substitutions, the action came to
be one prosecuted under the federal Employers' Act of 1908, c. 149,
35 Stat. 65, by the widow, as administratrix of the deceased's
estate, against James C. Davis, as federal Agent. Judgment went
against the latter, and on successive appeals there was an
affirmance by the Court of Civil Appeals and the Supreme Court of
the state. The final affirmance included a provision adjudging the
corporate surety on the appeal bond jointly liable with Davis, as
federal Agent, for the costs in the two appellate courts.
Within the allotted three months, Davis, describing himself as
federal Agent, and the surety company petitioned this Court for a
review on certiorari, and the petition was granted.
It now appears that, when the petition was presented, Davis had
ceased to be federal Agent, and had been succeeded in that office
by Andrew W. Mellon -- thereby making the judgment unenforceable
against Davis and possible of satisfaction only after the
substitution of his successor, Mellon. Therefore, Davis was not
then in a position to complain of the judgment or to invoke a
review of it by this Court. All right and discretion to do either
had passed to his successor in office.
Florida
ex
Page 280 U. S. 408
rel. Wailes v. Croom, 226 U. S. 309;
Taylor v.
Savage, 1 How. 282,
42 U. S. 286;
Dolan v. Jennings, 139 U. S. 385,
139 U. S. 387;
McClane v.
Boon, 6 Wall. 244.
It follows that the writ of certiorari granted on the petition
of Davis was improvidently allowed, and must be dismissed. The fact
that the surety company joined in the petition cannot alter the
result. While the company was adjudged liable for the costs in the
two appellate courts, that feature of the judgment of affirmance is
not made a ground of complaint. Nor does it enable the company to
complain of the judgment in other particulars.
Smith v.
Indiana, 191 U. S. 138,
191 U. S.
149-150.
A motion is now made by Andrew W. Mellon, as federal Agent, for
his substitution in the present proceeding in the place of Davis.
But the motion must be denied. The succession in office, as now
appears, occurred before there was any effort to obtain a review in
this Court. After the succession, Davis was completely separated
from the office, and without right to invoke such a review or
exercise any authority or discretion in that regard. Therefore, his
petition must be disregarded. The time within which such a review
may be invoked is limited by statute, and that time has long since
expired. To grant the motion in these circumstances would be to put
aside the statutory limitation and to subject the party prevailing
in the state court to uncertainty and vexation which the limitation
is intended to prevent.
The provisions relating to substitution which were added to
§ 206 of the Transportation Act of 1920 by the Act of March 3,
1923, c. 233, 42 Stat. 1443 are cited in support of the motion.
But, even when they are liberally construed, as they probably
should be, they disclose no purpose either (a) to enable a former
federal Agent to invoke a review by this Court of a judgment which
is of no legal concern to him, or (b) to modify or
Page 280 U. S. 409
enlarge the prescribed statutory period for invoking the
reviewing power of this Court.
Motion for substitution denied.
Writ of certiorari dismissed.
