Nicholson v. Louisville, New Albany & Chicago R. W. Co.

Biddle, J. The complaint is as follows: “Allen T. Nicholson, plaintiff, complains of the Louisville, New Albany and Chicago Railway Company, defendant, and says, that on the 24th day of March, 1870, by the consideration of the circuit court in and for the county of Montgomery, in the State of Indiana, he recovered a judgment against The New Albany and Salem Railroad Company, for the sum of one hundred and seventy-five dollars, the same being upon a complaint for cattle killed by an engine and cars running on the road of said company, which said judgment is now in full force, wholly unpaid, and not appealed from; that at the time said stock, for the killing of which said judgment was recovered, was run upon and killed by the engine and cars running on said road, the said road was being run and operated by one Charles E. Bill, as alternate trustee under a mortgage, or trust-deed, executed by said railroad company, to one Bow B. "Williamson, and his alternate, said Bill, (the said Williamson being dead) to secure the payment of the bonds issued by said company, which said mortgage, or trust-deed, among other things, made it the duty of the said Bow B. Williamson, and said [506] Bill, to run and superintend said road, and, after first paying the expenses of running and keeping said road in order, out of the earnings of the same, to pay the said bond-holders the interest and principal of their bonds; that the said Charles E. Bill, alternate of Dow D. 'Williamson, instead of paying for said stock, so killed upon said road, out of the earnings of said road, paid the whole of the earnings of said road to said bond-holders, and left the judgment of plaintiff wholly unpaid; the debt for the killing of said stock being a part of the expenses of running and operating said road, and all such debts having been so regarded and treated by the said Dow D. Williamson, said Charles E. Bill and said bondholders ; that, subsequently to the rendition of said judgment, said New Albany and Salem Railroad was sold, together with a large amount of personal and real property acquired by said New Albany and Salem Railroad Company, after the making and recording of said mortgage, or trust-deed, to the said Dow D. Williamson, and said Bill, his alternate, by order of the United States District Court, for the benefit and upon the application of said bond-holders, they becoming the purchasers thereof for a mere nominal sum; and the said bond-holders now own and operate said road, under the name and style of the Louisville, New Albany and Chicago Railway; the said bond-holders, after having so purchased said road, and succeeded to all the property, rights, franchises and obligations of the said New Albany and Salem Railroad Company, organizing themselves into a new corporation, known as the Louisville, New Albany and Chicago Railway Company, pursuant to the statute of the State of Indiana, in such case made and provided. Wherefore,” etc. To this complaint a demurrer was filed, alleging as grounds: 1st. The insufficiency of the facts stated; an^, 2d. A defect of parties defendants. [507] The demurrer was sustained, exceptions taken, and judgment rendered on the demurrer. It is enough to say that this complaint does not show, what amount of the earnings of said road came to the hands of the trustee, out of which the debt claimed should have been paid; and whether any such earnings so came to his hands, or whether there ever were any such earnings, is left wholly to inference; there are no such averments, without which, the complaint is insufficient. And in pointing out only these defects, we must not be understood as deciding, or even implying, that the complaint is sufficient in other respects. Perhaps the second ground of demurrer is not sufficiently specific in its statements. It does not clearly show what additional party ought to have been made defendant. The judgment is affirmed, with costs.