original decree holding him liable for all the claims, and had no concern as to how the whole amount decreed against him was to be distributed. So here, the plaintiffs suing to protect their common undivided interest in lands put in peril by fraudulent orders obtained by the defendants acting in combination to obtain such orders for their benefit, are only concerned in preventing the defendants from proceeding under the orders of the Probate Court, which they procured for their benefit equally, and under which they all now equally claim. The plaintiffs made no contest as to particular claims. They dispute all of them as claims against Hiram Evans' estate. If the orders of the Probate Court stand for the benefit of the respective defendants, then the plaintiffs' interests in the lands are liable for all the claims asserted by the defendants; for there is no dispute here as to the amount of any particular claim. Hence, as we have said, the value of the matter in dispute is the aggregate amount of the claims fraudulently procured by the defendants acting in combination to be allowed in the Probate Court as claims against the estate of Hiram Evans.

For the reasons stated we hold: 1. That it was competent for the Circuit Court upon the case made by the bill to deprive the defendants, acting in combination and claiming the benefit of the orders made in the Probate Court allowing their respective claims. 2. That the value of the matter in dispute in the Circuit Court was the aggregate amount of all the claims so allowed against the estate of Hiram Evans.

The decree is reversed with directions to set aside the order dismissing the suit for want of jurisdiction, to overrule the demurrer, and for further proceedings as may be consistent with this opinion and with the law.

Reversed.

Statement of the Case.

196 U. S.

CALEDONIAN COAL COMPANY v. BAKER.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 419. Argued January 27, 1905.-Decided February 20, 1905.

In an action for mandamus against a judge of a territorial court in New Mexico, who, after the appeal, ceased to be judge and whose successor has consented that the action be revived against him, this court may, under the act of Congress of February 8, 1899, if in its judgment necessity exists for such action in order to obtain a settlement of the legal questions involved, substitute the name of the successor in place of the original appellee. In this case this court orders the substitution, the party substituted not to be liable for any costs prior hereto.

A court cannot acquire jurisdiction over the person of a defendant except by actual service of notice upon him within the jurisdiction or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service. Service of a summons in an action in a territorial court of New Mexico on the president of a railway corporation, while passing through New Mexico as a passenger on a railroad train, held insufficient as a personal service of a corporation organized under an act of Congress, having offices in New York, Kansas and Illinois, and none in New Mexico; the mere ownership of lands, the bringing of suits to protect such lands, in New Mexico does not locate the corporation in New Mexico for the purposes of a personal action against it based on such a service of the summons. Nor was such service authorized by the Compiled Laws of New Mexico, 1897.

Although the state of the statute law in respect of suits like this may operate injuriously at times the situation cannot be changed by the courtsthat can only be done by legislation.

THIS appeal brings up for review a final judgment of the Supreme Court of the Territory of New Mexico denying an application to that court by the Caledonian Coal Company for a writ of mandamus to compel Benjamin S. Baker, Judge of the District Court of the Second Judicial District of that Territory, to take cognizance of a certain action brought in

that court against the Santa Fé Pacific Railroad Company and others.

The petition for mandamus makes the following case:

On the seventeenth day of February, 1904, the Caledonian Coal Company, organized under the laws of New Mexico, commenced an action in the District Court of the Second Judicial District of that Territory against the Santa Fé Pacific Railroad Company, the Atchison, Topeka and Santa Fé Railroad Company, the Colorado Fuel and Iron Company and the American Fuel Company, to recover damages for alleged violations of the Interstate Commerce Act of 1887 and the Anti Trust Act of 1890.

By the ninth section of the above act of 1887 it is provided that "any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any District or Circuit Court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said. remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. . 24 Stat. 379, c. 104. And by section 7 of the above act of 1890 it was provided that "any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any Circuit Court of the United States in the District in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee." 26 Stat. 209, c. 647.

A summons was issued against the Santa Fé Pacific Railroad Company and was returned by the Marshal of the Territory, the return stating that it was served at the above district on VOL. CXCVI-28

Statement of the Case.

196 U. S.

the thirteenth day of May, 1904, by delivering a true copy thereof, with a copy of the complaint thereto attached, to E. P. Ripley, president of the defendant corporation.

The Santa Fé Pacific Railroad Company is a corporation organized and existing under the act of Congress of March 3, 1897, defining the rights of purchasers under mortgages authorized by an act of Congress approved April 20, 1871, concerning the Atlantic and Pacific Railroad Company. 29 Stat. 622,

c. 374.

When the grievances set out in the petition were committed, the Santa Fé Pacific Railroad Company was the owner of a line of railroad within the Second Judicial District of New Mexico and elsewhere within that Territory, but which line, at the commencement of this action, had been sold and transferred to, and was being operated by, the Atchison, Topeka and Santa Fé Railroad Company under a conveyance authorized by an act of Congress of June 27, 1902, 32 Stat. 405, c. 1159; was the owner of several hundred thousand acres of land within that District; and, at the commencement of the action for damages, was prosecuting in one of the counties of the Territory, within the same District, suits involving the company's title and possession of parts of those lands.

All of those lands, with the rights, privileges and franchises appertaining thereto where acquired by the Santa Fé Pacific Railroad Company as the successor of the Atlantic and Pacific Railroad Company, to which last named company they were granted by the act of Congress of July 27, 1866. 14 Stat. 292, c. 278.

The petition for mandamus alleged that by reason of the above facts the Santa Fé Pacific Railroad Company was an "inhabitant" of the Second Judicial District of New Mexico, and by reason of the presence of Ripley, its president, in that Territory and within that District and the service of summons in the above action upon him as such president, the company was "found" in the District within the meaning of the acts of Congress.

Nevertheless, the defendant Baker, Associate Justice of the Supreme Court of the Territory and Judge of the District Court of the Second Judicial District, quashed the return of the above summons and refused to assume jurisdiction of the action, so far as the Santa Fé Pacific Railroad Company was concerned, or to require that company to answer the declaration or complaint filed by petitioner.

The defendant Baker made a return to a rule issued against him to show cause. From that return it appeared that the Santa Fé Pacific Railroad Company specially appeared in the action for the purpose of moving and did move to quash the service of process, upon grounds set forth in an affidavit of its president. In that affidavit Ripley stated that when served with summons he was only a passenger on a railroad train passing through the Territory; that the company had its office in the city of New York, while its land commissioner had an office at Topeka, Kansas, and its president an office at Chicago, Illinois; that the company had no property in the Territory of New Mexico, except lands acquired by it under a foreclosure of a mortgage of the Atlantic and Pacific Railroad Company, and which lands were undisposed of; that it has had no office or place of business in the Territory since the sale of its road. This affidavit was used on the hearing of the motion to quash, and the facts stated in it were not contradicted.

The contention of the company, therefore, was that the service in question was insufficient to bring the company, personally, before the court.

The return of the judge also stated that the actions in ejectment brought by the railroad company against trespasses upon its property were instituted prior to the sale of its railroad property and franchises to the Atchison, Topeka and Santa Fé Railroad Company; and that the refusal of the judge to assume jurisdiction in the case referred to was upon the ground that the service upon Ripley as president of the company was not, in his opinion, sufficient to subject it personally to the jurisdiction of the court.