ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
This was an action commenced in the Circuit Court of Shelby County, Tennessee, by R.S. Daughtry as administrator of John W. Daughtry, deceased, against the Kansas City, Fort Scott and Memphis Railroad Company and the Kansas City, Memphis and Birmingham Railroad Company on the 16th of August, 1888, for the recovery of damages for the death of John W. Daughtry, alleged to have been occasioned by the negligence of defendants. The summons was returnable on the third Monday of September, 1888, and alleged as to the defendants, "both of which are railroad corporations conducting business in Shelby County, Tennessee, with offices and agencies in said county and State." The return of the sheriff was as follows: "Came to hand 16th day of August, 1888. Executed on the Kansas City, Fort Scott and Memphis Railroad Company by reading the contents of this writ to J.H. Sullivan, sup't of said railroad co., he being the highest officer to be found in my county, and executed on the Kansas City, Birmingham and Memphis Railroad Company by reading the contents of this writ to J.H. Sullivan, sup't, he being the highest officer of said co. to be found in my county. This 23d day of August, 1888."
The declaration was filed September 17, 1888, and averred, in the first count, defendants to be "corporate persons, doing business as such in Tennessee (under license and by consent of the State);" and in the second count described the defendant corporations as "doing business in Tennessee as aforesaid." It was also alleged in the first count that defendants "are and were on and prior to the 16th of August, 1888, engaged in operating important lines of railway under one common or
general management, with depots and terminal facilities in the taxing district of Shelby County;" and in the second count, that "on or about the 12th day of August, 1888, defendant companies were operating cars and engines on their railroad lines leading into the taxing district of Shelby County."
The statutes of Tennessee provide as follows:
"4238. The declaration of the plaintiff shall be filed within the first three days of the term to which the writ is returnable, otherwise the suit may, upon motion of the defendant, be dismissed at plaintiff's cost.
"4239. The defendant shall appear and demur or plead within the first two days after the time allotted for filing the declaration, otherwise the plaintiff may have judgment by default.
"4240. The plaintiff and defendant shall, within the first two days after each subsequent step taken by the other in making up an issue, demur or plead thereto, on penalty of having the suit dismissed or judgment taken by default, according as the failure is by the plaintiff or defendant.
"4241. The court may, however, enlarge the time for pleading, upon application of either party, in proper cases, or excuse the failure to plead within the time prescribed, upon good cause shown." 2 Thompson and Steger's Tenn. Stats. 1871, p. 1714 et seq.; Milliken and Vertrees' Code of Tenn. 1884, p. 949; in which edition of the code the sections are numbered respectively 5010, 5011, 5012 and 5013.
The declaration was filed on the first day of the term to which the writ was returnable, and the defendants' pleas were due during that week. Upon the 25th of September the Kansas City, Memphis and Birmingham Railroad Company filed its plea of the general issue. The Circuit Court of Shelby County had five regular terms, "commencing on the third Mondays in January, March, May, September and November of each year." Acts Tenn. 1883, p. 257; Milliken and Vertrees' Code, § 129, p. 49.
On the 29th of May, 1889, after the lapse of four terms, the Kansas City, Fort Scott and ...