Secombe v. Milwaukee & St. Paul R. R. Co.

statute is the guide for the action of the company, and if we find that it has conformed to the provisions of the several acts laid down for its government in these proceedings, it is not our province to question the discretion exercised by the legislature.

In our opinion, the judge of the district court, who appointed the commissioners, obtained jurisdiction of the proceedings. The notices were sufficient. The necessary steps were taken to secure the attendance of claimants to the lot, at the meeting held to consider the amount of damages. The 22d section of the act of February, 1864, confirmed the proceedings previously taken. No appeal was taken from the award to the court, where there might have been a trial by jury, and it is now too late for the owners or their assigns to object.

It is true that after the order was made for judgment, and that the money be paid into court, several months elapsed before it was done; but this delay, in our opinion, does not invalidate the judgment. No action was taken to have it set aside. The award was confirmed without complaint, and the owners cannot now attack it here on that account.

The record of judgment has been completed, and the same, with a certificate by the clerk of satisfaction as against the company, has been filed with the register of deeds of Hennepin county. This record is declared by law to be evidence of title to the lands described therein, in the same manner and with like effect as deeds to real estate.

The title to this lot is perfect in the defendant, in our opinion, and judgment must be entered accordingly.

DILLON, Circuit Judge, concurs.

JUDGMENT ACCORDINGLY.

NOTE. A writ of error was sued out from the supreme court.

As to condemnation of right of way: Eidemiller v. Wyandotte, ante. Relation of new corporations to the old corporations in Minnesota, see Hopkins v. St. Paul & Pacific Railroad Company, ante.

REPORTS

OF

CASES DETERMINED

IN THE

Circuit Court of the United States,

FOR THE

DISTRICT OF IOWA.

MUмм, Adm'r of John Johnson, v. OWENS.

A servant brought an action against his master for negligence, and during its pendency died. Under the statute of the state by which the action survived, his administrator was substituted as plaintiff, and the action continued in his name, and came on for trial. The servant, before his death, was fully examined and cross-examined as a witness in his own behalf, and his examination was reduced to the form of a deposition, and, on the trial, was read in evidence to the jury by the administrator against the defendant: Held, under the act of Congress of March 3, 1865 (13 Stats at Large, 533), that the defendant should be allowed to testify on his own behalf as to the matters embraced in the deposition of the plaintiff's intestate.

(Before DILLON, Circuit Judge.)

Evidence. Competency of Parties. Act of March 3, 1865, Construed.

THIS action was originally instituted by John Johnson in his life time, to recover for injuries caused, as alleged, by

Mumm v. Owens.

the defendant's negligence. The defendant was a contractor, under the government, for building locks in the canal near Keokuk, and Johnson was employed by him as a laborer. The defendant gave orders to fifteen or twenty men to lift a heavy box, or turn-table, and remove it to a designated place, and, in the course of executing this order, Johnson was seriously injured. For the injury thus occasioned, this action was brought by Johnson. Johnson's deposition, after issues settled, was taken upon the whole case, and he was fully examined and cross-examined as to all matters in controversy. Subsequently he died, and, under the statute of the state, his administrator was substituted as plaintiff, and the cause proceeded in his name. On trial, the plaintiff Mumm, as administrator, read in evidence to the jury the above-mentioned deposition of his intestate, the said Johnson, and produced other evidence to the jury in relation to the accident, its cause, and the extent of Johnson's injury.

When the plaintiff had rested, the defendant's counsel offered the defendant himself as a witness in his own behalf. The plaintiff's counsel objected, on the ground, that as the plaintiff was an administrator, the defendant was not a competent witness for himself.

Craig & Gibbons, for the plaintiff.

Gillmore & Anderson, for the defendant.

DILLON, Circuit Judge.-This action was brought by Johnson in his life time, for personal injuries to himself, caused by the alleged negligence of the defendant, and pending the action he died, and his administrator was substituted as the party plaintiff, and he seeks to recover for the same injuries for which the action was commenced by Johnson. Under

Mumm v. Owens.

the statute of the state, the action survives, as will be seen by the case of Shafer v. Grimes, 23 Iowa, 550.

It is to be noticed that this is not an action by the administrator, under the statute of the state, to recover damages for the death of Johnson; but it is the original action, brought by Johnson, which did not abate by his death, but, under the statute, survived to his administrator. Johnson, before his death, was examined as a witness in his own behalf, and his examination was reduced to writing, in the form of a deposition, and this deposition has been read in evidence by the plaintiff.

Now, is the defendant, under these circumstances, precluded from testifying to the matters covered by Johnson's evidence, as contained in the deposition read to the jury? Under the act of Congress of July 2, 1864 (13 Stats. at Large, 351, sec. 3), and of March 3, 1865 (Ib. 533, sec. 1), it is my opinion that the defendant should be allowed to testify, if the plaintiff insists upon keeping the testimony of his intestate before the jury.

The first act above cited makes parties competent witnesses in all civil cases; and the second act does not pronounce an absolute disqualification against the living party when the adverse party is an administrator, but enacts that he "shall not be allowed to testify against the other as to any transaction with, or statement by, the testator or intestate, unless called to testify thereto by the opposite party, or required to testify thereto by the court." In this case, the intestate has testified, and his testimony is before the jury; to exclude the defendant from giving his version of the same transaction would be manifestly unfair, and in contravention of the purpose and spirit of the legislation of Congress.

EVIDENCE ADMITTED.

Lancaster v. County Auditor.

LANCASTER v. COUNTY AUDITOR.

The county auditor can not lawfully refuse to receive from the owner of the patent or regular title to lands, the amount of money, when tendered in time, necessary to redeem the same from a sale for taxes, on the ground that there is an outstanding tax title to the same lands in some one else.

(Before DILLON, Circuit Judge.)

Tax Sale.-Redemption.

THE plaintiff claimed to be the owner of certain lands in Page county which had been sold for taxes in 1864, and for which a deed was given to the purchaser. In 1867 the land was again sold for taxes, to one Callanan. In 1870, the plaintiff' went to the county auditor's office, and offered to redeem the lands from the last sale, but the auditor refused to accept the money, on the ground that he was no longer the owner of the land, and the only person who could redeem was the holder of the tax deed under the former sale. This suit was brought to redeem the land, and to enjoin the treasurer from making a deed under the last sale.

Brown, Campbell, & Sully, for the complainant.

Barcroft, Gatch, & Hammond, for the defendant.

DILLON, Circuit Judge.- We hold that the plaintiff had the right to redeem; that the auditor had no right to refuse to issue the redemption certificate, and that it was his duty to receive the money tendered by the owner of the regular title. The existence of an outstanding deed could not prevent the owner from protecting his interest from the inception of a new estate under the last sale.

DECREE ACCORDINGLY.