The Detroit times., 1914-07-30
Defense Moves TO Dismiss Pro-
test Against Lake Shore-N.
y. Central Consolidation
LATTER ROAD CAN'T BE
BROUGHT INTO COURT
Therefore. No Order Affecting 1t
Can BE Made, It's Argued
Killifer Decision Quoted

ling got all mixed up IN the federal
lcourt Wednesday morning, when
iheariug on the petition OF Charles J..
spencer for an Injunction restraining
Itac boards OF directors o. the Lake
ishore and New York Central rail-
roads from carrying out consolida-
Iucn agreement already drawn up
was resumed before Judge futile
Immediately after court opened,
1 former judge a b Moves OF New
York counsel FOR the defendants, in
Iterposed q motion for dismissal or
the action. argument on which took
lup the entire morning session.
j In Ills motion Judge Moves set M
that the New York Central because
I OF tho fact that a decision against the
def. ndarts would work injury 20 H.
4 is an indispensable party TO the &C.
ition X could not. however. be sum-
Imoned into the Jurisdiction ~ this
court. being Incorporated In and a
Illegal resident Of the state OF New
York The judge argued that mas
much as a verdict could not be rem
Idered without affecting the interests
OF the New York Central and that
corporation could not be brought into
court ir Michigan the court had no
Jurisdiction over the case.
His second point in the motion FOR
dismissal was that. inasmuch as the
action was not one 10 enforce a leln
or claim or 20 remove n lein. eucum.
hrance or cloud upon the title 70 the
physical property OF the Lake shore,
II the district court of Michigan was
without authority 70 act.
This portion Of his motion was sub
Istantially the same as the argument
set up by him as his defense on Tues
day
As a third argument for a dismissal
os the action. Judge Moves declared
that the plaintiffs were not entitled
70 the relief prayed for inasmuch as
the grounds set up in the bill OF com
plant we're not sufficient TO warrant
an action in equity
During the argument on the first
OF these premises Judge futile seek,
irg a clearer explanation OF Judge
Noyes' position. referred frequently
TO the Killifer case in which the Chi
cago Federals sought TO enjoln that
player from carrying out the terms
| OF later contract with the Philadel-
| phia club The cases. insofar. as the
necessity Of the presence OF second
! defendant. not mentioned In the bill
| OF complaint, are practically the same
lend the baseball decision was fire.
IGuently referred 10.
In hrs argument Judge Noyes
brought out the fact that the New
York Central cannot be preiudiced
because of it's non-appearance In this
case. inasmuch as IL Is not compelled
10 90 out OF its own Jurisdiction He
also showed that. by granting the In
junction prayed for the court would
be deriving the New York Central
from voting the stock which II holds
r. the Lake Shore. thus deprivinS
that corporation OF the exercise OF
It's property rights and injur'ously
affecting the road,
The bill OF complaint he pointed
out. also asks an annulment OF an
agreement OF consolidation 20 which
the New York Central is a party.
Former United States Attorney
General Wickersham and Otto Kirch-
ner. OF Detroit, counsel for the plain
TINS. divided the time allotted them
10 argue against the motion for dis
missal
THE statement that the New York
Central cannot be brought into this
court Is the baldest technicality ever
urged I'm n motion for dismissal said
Mr. Kirchner IN opening his reply
"As a matter Of fact the boards OF
directors OF the Lake Shore and the
! New York Central are one and the
same. the roads are now operated IN
der the same management. employ
1.-THE same officials and have the same
Icounsel Wien Judge Noyes filed a
reply 10 this bill OF complaint he
| signed his name 10 1t and afterwards
wrote chief counsel for the Lake
shore e. Michigan Southern and New
IYcrk Central railroads
"The New York Central is present
in fact and that's why J call this the
/ beldest sort 81 technically"
Attorney Klrchner insisted that
1.-THE court may. I'm It's discretion ad
/ Indicate the matter now before IL HC
luuoted from decision OF Judge
storey 10 show that the utter imp0s
lsitility of bringing party which
might be affected by a suit into court
constituted an exception under which
1.-THE court might proceed 10 render q
decision re also insisted, and was
mot challenged. that no writer on;
law no court no legal body has
lever defined or attempted 10 define
IN, meaning OF the term fndispensa
lille party as applied 10 a suit or 70
determine the legal status OF such a
party
lie further pointed ont that the
court might strike out all OF that por-
Itlor ~ the bill OF complaint referring
to the New York Central and grant
the petition for an injunction against
th' Lake shore board OF directors and
'sun give his clients substantially the
relief for which they PRAYED
Nr. Wickcrsham took up tho reply
at the conclusion ~ Mr. Kirchner's
arsument
He insisted that there is a limit TO
1.-THE hctions OF fhe law as means
20 hinder the administration OF ius.
Itce" and showed that his clients ask
led simply for the preservation %
Their property The people whom he
represented he said desired the
Icourt 10 relieve them from the ncces.
silly Of seeing their property wiped
ont OF existence as such. thus com.
polling them either 20 accent money
or stock IN some other corporation az
n substitute virtual forced sale or
exchange
Arguments were continued during
1.-THE afternoon.
|