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U.S. Supreme Court

Thompson v. Railroad Companies, 73 U.S. 6 Wall. 134 134 (1867)

Thompson v. Railroad Companies

73 U.S. (6 Wall.) 134


1. Though usually where a case is not cognizable in a court of equity the objection must be interposed in the first instance, yet if a plain defect of jurisdiction appears at the hearing or on appeal, such court will not make a decree.

2. Though state legislatures may abolish, in state courts, the distinction between actions at law and actions in equity by enacting that there shall be but one form of action, which shall be called "a civil action," yet the distinction between the two sorts of proceedings cannot be thereby obliterated in the federal courts.

Hence, if the civil action brought in the state courts is essentially, as hitherto understood, a suit at common law, the common law form and not an equitable one must be pursued if the case is removed into a federal court.

3. Nor does the fact that by statute in the state courts "the real parties in interest" must bring the suit, whereas in the federal courts, in a common law suit such as was presented in the civil action brought in the state courts, one party would sue to the use of another, change this rule. A plaintiff in the state court may remain plaintiff on the record in a federal court and prosecute his suit in that court as he is authorized by state laws to prosecute it in the state courts.

Page 73 U. S. 135

The case was this:

The Code of Civil Procedure of Ohio provides that every action must be prosecuted "in the name of the real party in interest" &c., and

"That the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished, and in their place there shall be hereafter but one form of action, which shall be called a 'civil action.'"

With this provision of the code in force, the Central Ohio and another railroad company agreed to transport over their road for one Thompson a quantity of horses and mules, stipulating for payment in a certain mode, to which Thompson assented. In conformity with this agreement (the service having been performed), drafts were drawn on Thompson which he neglected or refused to pay. These drafts, for convenience of collection, were drawn payable to the order of a certain D. Robinson cashier, Robinson having, however, no interest in the proceeds. To enforce the collection, what is termed as above mentioned, by the code in Ohio, a "civil action" was instituted in one of the courts of the state, against Thompson in the name of the railroad companies. The petition (used in lieu of a declaration) stated the original indebtedness from Thompson for freight, the giving of the drafts, their protest for nonacceptance or nonpayment, and after averring that the plaintiffs were compelled to take them up, asked for judgment against the defendant for principal and interest. Thompson, being a citizen of Kentucky, removed the cause to the federal court. When it reached there, by leave of the court, a bill in equity (setting up the same cause of action) was substituted for the petition originally filed in the state court, and the suit went on as a cause in chancery. The circuit court rendered a decree in favor of the complainants for the amount of the drafts, with interest. From this decree the defendants appealed, assigning as the chief ground of error that the complainants had a plain and adequate remedy at law which they had in fact

Page 73 U. S. 136

pursued in the state court, and which they ought to have followed out in the federal court.

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