Davis v. O'Hara
266 U.S. 314 (1921)

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U.S. Supreme Court

Davis v. O'Hara, 266 U.S. 314 (1924)

Davis v. O'Hara

No. 63

Argued October 10, 13, 1924

Decided November 24, 124

266 U.S. 314

Syllabus

1. General orders of the Director General of Railroads providing that suits against him must be brought in the county or district where the plaintiff resided at the time of accrual of the cause of action, or in the county or district where it arose, are in legal effect orders of the President, and are valid. Federal Control Act, § 10, 40 Stat. 456. P. 266 U. S. 317.

2. An action by an employee of the Director General for personal injuries sustained in the operation of a railroad under federal control is an action against the United States, and only to the extent clearly indicated by the Federal Control Act and orders of the Director General was the sovereign immunity from suit waived. Id.

3. Decision of a state supreme court that the Director General, by not sufficiently asserting and insisting upon it, waived immunity under the federal act and orders from being sued in the particular venue does not bind this Court on review. P. 266 U. S. 318.

4. A special appearance for the declared purpose of objecting to jurisdiction over the subject matter, as well as to jurisdiction over defendant's person, construed as confined to the latter point by the grounds set up in the motion to quash the summons. P. 266 U. S. 318.

Page 266 U. S. 315

5. In Nebraska, objection to jurisdiction over the person, in a special appearance and motion to quash the summons for defects not apparent on the face of the complaint, is not waived by adding an unfounded objection to jurisdiction over the subject matter. P. 266 U. S. 319.

6. A motion to quash service and a defense, based on allegation of fact which show that the action is in a wrong venue, which are consistent with the complaint and not denied by the plaintiff should not be overruled because the defendant did not bring evidence to sustain the allegations. P. 266 U. S. 319.

7. A defense well pleaded but not urged at a first trial may be insisted on at a second trial. P. 266 U. S. 321.

8. A ruling of a state supreme court that its former decision of a federal question became the law of the case on a second appeal does not affect the power of this Court to examine the question upon review of the final judgment. P. 266 U. S. 321.

109 Neb. 615 reversed.

Certiorari to a judgment of the Supreme Court of Nebraska which affirmed a judgment recovered by O'Hara in an action for personal injuries brought against the Director General of Railroads. The case went twice to the court below. 108 Neb. 74, 109 id. 615.

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