PACIFIC EXPRESS CO. V. MALIN, 132 U. S. 531 (1899)

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U.S. Supreme Court

Pacific Express Co. v. Malin, 132 U.S. 531 (1899)

Pacific Express Co. v. Malin

No. 1301

Submitted December 2, 1889

Decided December 23, 1889

132 U.S. 531


Plaintiffs sued defendant in a state court in Texas to recover $5,970, the alleged value of goods destroyed by a fire charged to have been caused by defendant's negligence. Defendant pleaded and excepted to the petition. The cause was then removed to the circuit court of the United States on defendant's motion, who there answered further, pleading the general issue, excepting to the petition, among other things, for insufficiency and vagueness in the description of the goods and charging contributory negligence on plaintiffs' part. Plaintiffs filed an amended petition more precise in statement and reducing the damage claimed to $4,656.71. To this defendant answered, again charging contributory negligence and setting up, "by way of set-off, counterclaim, and reconvention," injuries to himself to the extent of $8,000, resulting from plaintiffs' negligence, for which he asked judgment. Plaintiffs excepted to the cross-demand. On the 6th October, 1888, the cause coming to trial, defendant's exceptions were overruled except the one for vagueness, and as to that plaintiff's were allowed to amend; plaintiffs' exceptions to the counterclaim were sustained, and the jury rendered a verdict for $4,300 principal and $792.15 interest. It appeared by the record that plaintiffs on the wane day remitted $435.50, and judgment was entered for $4,656.65, but it further appeared that on the 8th October, plaintiffs moved for leave to remit that amount of the judgment and leave was granted the remittitur to be as of the day of the rendition of the judgment, and the judgment

Page 132 U. S. 532

to be for $4,656.65 and costs. On the same 8th of October, defendant filed a bill of exceptions in the cause "signed and filed herein and made a part of the record in this cause this 8th day of October, 1888." On the 9th October, a motion for a new trial was overruled. On a motion to dismiss the writ of error or to affirm the judgment,


(1) That the remittitur was properly made, and that it was within the power of the circuit court to order it as it was ordered.

(2) That if no other question were raised in the case, the motion to dismiss would be granted.

(3) That the counterclaim, being founded on a "cause of action arising out of, or incident to, or connected with the plaintiffs' cause of action," was properly set up, and conferred upon this Court jurisdiction to examine further into the case.

(4) That the plaintiffs' exception to the counterclaim was properly sustained.

(5) That if the counterclaim could be maintained, a recovery could be had only for damages which were the natural and proximate consequences of the act complained of.

(6) That the defendant's exceptions to the charge of the court, having been taken two days after the return of the verdict, were taken too late.

(7) That the facts furnished ground for maintaining that the counterclaim was set up only for the purpose of giving jurisdiction to this Court.

(8) But whether that were so or not, the judgment ought to be affirmed on the case made.

Motions to dismiss or affirm. The case is stated in the opinion.

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