Opinion of the Court.

In re ATLANTIC CITY RAILROAD.

ORIGINAL.

Submitted December 7, 1896. - Decided January 4, 1897.

The power of this court to issue a writ of mandamus to an inferior court is well settled, but, as a general rule, it only lies where there is no other adequate remedy, and cannot be availed of as a writ of error.

The objection to the jurisdiction in the Circuit Court, presented by filing the demurrer for the special and single purpose of raising it, would not be waived by answering to the merits upon the demurrer being overruled.

THE case is stated in the opinion.

Mr. William Houston Kenyon for petitioner.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This is an application for leave to file a petition for a writ of mandamus. The petition states that the Atlantic City Railroad Company is a corporation created, organized and existing under the laws of the State of New Jersey; that May 20, 1896, a bill in equity was filed by the Union Switch and Signal Company and the Fidelity Title and Trust Company, corporations organized and existing under the laws of Pennsylvania, against petitioner and Joseph S. Harris, its president, defendants, in the United States Circuit Court for the Eastern District of Pennsylvania, for the alleged infringement of certain letters-patent for improvements in electrical sig nalling apparatus; that July 6, 1896, petitioner appeared specially for the purpose of objecting to the jurisdiction of the court, and, on August 3, filed a demurrer raising the question, and on the same day defendant Harris also filed a demurrer to the bill of complaint; that petitioner's demurrer was overruled and defendant Harris was granted permission to withdraw his demurrer, if he so elected.

That by virtue of the order overruling the demurrer petitioner is required, "as it is advised and believes, to enter a general appearance by the 28th day of December, 1896, and

Opinion of the Court.

file an answer by the fourth day of January, 1897, or within other reasonable time fixed by the court, or an interlocutory decree will be issued against it directing the issuance of an injunction against it and awarding damages and costs and an accounting." That petitioner has a defence on the merits. which is an adequate and complete answer to the bill; "that it is advised and believes that it has no adequate remedy by appeal"; and "that if it enters a general appearance or files an answer in said case, it will thereby and by that act and fact forever waive all objection to the jurisdiction of said court, and this court will be forever ousted of its jurisdiction. to determine the jurisdiction of said court in said case, and that, accordingly, your petitioner has no adequate remedy unless this court will grant the mandamus as herein petitioned."

The prayer was for a writ of mandamus directed to the judges of the Circuit Court of the United States for the Eastern District of Pennsylvania, commanding them to dismiss, "as against your petitioner," the bill of complaint in the suit, and "to vacate, as against your petitioner, the said order of November 24, 1896, overruling the said demurrer of your petitioner, and to enter a decree to that effect, all as prayed for."

Copies of the bill of complaint, the special appearance, the demurrer and of the order overruling the demurrer and granting leave to withdraw the demurrer of Harris, without prejudice, were annexed. The bill of complaint showed complainants to be corporations of Pennsylvania and citizens thereof; the defendant, the Atlantic City Railroad Company, to be a corporation and citizen of New Jersey, having its principal office at Philadelphia, and defendant Harris, its president, to be a citizen of Pennsylvania.

Petitioner's demurrer showed for cause "that it appears upon the face of said bill of complaint that this court has no jurisdiction over the person of this defendant the Atlantic City Railroad Company, as it appears upon the face of the said bill of complaint that this defendant is not an inhabitant or citizen of the Eastern District of Pennsylvania or the State

Opinion of the Court.

of Pennsylvania, but is an inhabitant and citizen of the district and State of New Jersey."

The general power of the court to issue a writ of mandamus to an inferior court, to take jurisdiction of a cause when it refuses to do so, is settled by a long train of decisions; but mandamus only lies, as a general rule, where there is no other adequate remedy; nor can it be availed of as a writ of error. In re Pennsylvania Co., Petitioner, 137 U. S. 451; In re Morrison, Petitioner, 147 U. S. 14; Ex parte Railway Company, 103 U. S. 794; Ex parte Baltimore & Ohio Railroad Co., 108 U. S. 566.

In In re Hohorst, Petitioner, 150 U. S. 653, the bill was filed in the Circuit Court of the United States for the Southern District of New York against a corporation and certain other defendants, and was dismissed against the corporation for want of jurisdiction. From that order complainant took an appeal to this court, which was dismissed for want of jurisdiction because the order, not disposing of the case as to ali the defendants, was not a final decree from which an appeal would lie. 148 U. S. 262. Thereupon an application was made to this court for leave to file a petition for a writ of mandamus to the judges of the Circuit Court to take jurisdiction and to proceed against the company in the suit. Leave was granted and a rule to show cause entered thereon, upon the return to which the writ of mandamus was awarded.

In this case, however, the Circuit Court entertained jurisdiction and the petitioner has its remedy by appeal, if a decree should pass against it. The objection to the jurisdiction presented by filing the demurrer, for the special and single purpose of raising it, would not be waived by answering to the merits upon the demurrer being overruled. Southern Pacific Company v. Denton, 146 U. S. 202.

To direct the exercise of jurisdiction is quite different from a mandate not to do so, and we think we should not interpose at this stage of the case in the manner desired.

Leave denied.

Statement of the Case.

TEXAS AND PACIFIC RAILWAY COMPANY v. BLOOM'S Administrator.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 88. Argued and submitted October 29, 1896. - Decided January 4, 1897.

A passenger on the road of the Texas and Pacific Railway Company sued that company and its receiver, in a Texas court, in an action at law, to recover for injuries received when travelling on its road while it was in the hands of the receiver. The case was removed to the Circuit Court of the United States, where a trial was had. The receivership had been terminated before the commencement of the action, and the property had, by order of court, been transferred to the company under the circumstances and on the conditions described in Texas & Pacific Railway v. Johnson, 151 U. S. 81, and in this case. The company contended that it was not liable, or, if liable, that the claim could only be enforced in equity. The trial resulted in a verdict and judgment for the plaintiff. Held, that, under the circumstances, the company was liable to the plaintiff in an action at law for the damages found by the jury; that the conduct of the railway company in procuring, or, at least, in acquiescing in the withdrawal of the receivership and the discharge of the receiver, and the cancellation of his bond, and in accepting the restoration of its road, largely increased in value by the betterments, affords ground to charge an assumption of such valid claims against the receiver as were not satisfied by him, or by the court which discharged him.

IN January, 1889, one Bloom, describing herself as a resident of Lamar County, Texas, brought an action in the District Court of that county against the Texas and Pacific Railroad Company and John C. Brown, receiver of said company, claiming damages for personal injuries received while travelling as a passenger on said railroad. The railroad company and Brown, the receiver, respectively filed petitions for the removal of the suit into the Circuit Court of the United States for the Eastern District of Texas. The District Court refused to grant the removal, to which ruling the defendants duly excepted. Pending the making up of the issue, John C. Brown, the receiver, died. The trial resulted in a verdict and judgment in favor of the plaintiff for the sum of six thousand dollars. The cause was then

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taken to the Supreme Court of Texas, where, for error of the District Court in refusing the petition for removal, the judgment was reversed and the cause was remanded.

In June, 1893, the case came on for trial in the Circuit Court of the United States, and the plaintiff recovered a verdict and judgment for the sum of eight thousand dollars, and, on a writ of error, that judgment was, on January 30, 1894, affirmed by the United States Circuit Court of Appeals for the Fifth Circuit. 23 U. S. App. 143. The case was then brought on error to this court. The plaintiff Bloom having died, Charles Manton entered an appearance as her administrator.

Mr. David D. Duncan for plaintiff in error. Mr. John F. Dillon and Mr. Winslow F. Pierce were on his brief.

Mr. James G. Dudley, Mr. A. II. Garland, and Mr. R. C. Garland for defendant in error submitted on their brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The plaintiff's original petition in the District Court of Lamar County disclosed that the injuries complained of were received in August, 1888, while the railroad was in the hands of John C. Brown, receiver, and alleged that the property of the Texas and Pacific Railway Company was placed in the hands of said John C. Brown as receiver, at the instance of the said railroad company and for its own benefit, and for the purpose of avoiding its traffic liability in the carrying of passengers and freight. The petition further alleged that the property of the said railroad company was never sold by said receiver to pay its debts, and was never contemplated to be sold, and that the entire earnings and current receipts of the said railroad while in the hands of the receiver, amounting to more than two millions of dollars, were applied to the payment of mortgage debts and in the betterment of the property of the company. It also alleged