determination is governed by the same considerations, as if it had been brought in the proper state tribunal of the same locality." Ex parte McNiel, 13 Wall. 236, 243, 20 L. Ed. 624; Davis v. Gray, 16 Wall. 203, 221, 21 L Ed. 447.

DENVER & R. G. R. CO. V. WAGNER.

(Circuit Court of Appeals, Eighth Circuit. December 21, 1908. On Rehear

ing, February 26, 1909.)

No. 2,845.

1. RAILROADS (§ 33*) -OPERATION-COMPLIANCE WITH TERRITORIAL LAWS-PRE

SUMPTION.

Where a petition alleged that defendant railroad company was operating a railroad in New Mexico Territory, in which the injury occurred, and it could not lawfully do so without complying with Laws N. M. 1903, р. 51, с. 33, commanding every railroad corporation operating in the territory to file a copy of its charter with the Territorial Secretary, give its principal place of business therein, and designate some person on whom process might be served, it would be presumed that defendant had complied therewith.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. § 33.*] 2. PLEADING (§ 59*) -PRECEDENT CONDITIONS-COMPLIANCE-EXCUSE.

A petition must show compliance with precedent conditions, or must

aver an excuse.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 124-127; Dec. Dig. § 59.*]

3. APPEAL AND ERROR (§ 256*) - RULINGS ON PLEADINGS-EXCEPTIONS.

The striking of a portion of defendant's answer cannot be assigned for error, where no exception was taken thereto at the trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1489; Dec. Dig. § 256.*]

4 EVIDENCE (§ 29*)-JUDICIAL NOTICE-STATUTES.

The federal courts take judicial notice of the public statute laws of the states and territories of the United States without their being pleaded or proved.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 48; Dec. Dig. 29.*

Judicial notice of public laws and regulations, see note to Smith v. City of Shakopee, 44 C. C. A. 4.]

5. EVIDENCE (§ 29*)-JUDICIAL NOTICE-AMENDATORY ACTS.

Where a petition disclosed on its face a cause of action predicated on a special statute of a territory, the Circuit Court of Appeals would take notice of an amendatory act as inseparable from the statute declared on.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. $ 48; Dec. Dig. § 29.*]

6. TRIAL (§ 169*) - OBJECTIONS TO PLEADING-FAILURE TO RAISE-OBJECTIONS TO EVIDENCE.

Mills' Ann. Code Colo. § 55, provides that if objection to a petition is not taken by demurrer or answer, defendant shall be deemed to have waived it, except that the objection that the petition does not state facts to constitute a cause of action may be raised at any time. Held, that an objection to a petition for want of facts in failing to allege compliance with conditions precedent was effectually raised by defendant's motion for a directed verdict at the close of all the evidence and an exception saved to the denial thereof.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 169.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexen 7. ΑΟΤΙΟΝ (§ 10*) -CONDITION PRECEDENT-COMPLIANCE.

A party given a right of action by local statute cannot escape performance of precedent acts which condition the right by resort to the forum of another jurisdiction.

[Ed. Note.-For other cases, see Action, Dec. Dig. § 10.*]

8. DEATH (§ 51*) - DEATH OF PASSENGER - PETITION - CONDITION PRECEDENT -COMPLIANCE WITH STATE STATUTES.

A petition for death of a passenger under the statutes of New Mexico, giving a right of action to the surviving widow of a person killed by wrongful act, which failed to allege notice to the carrier served within the territory, as required by Laws N. M. 1903, p. 51, c. 33, amending the statute under which the action was brought, was fatally defective.

[Ed. Note.-For other cases, see Death, Dec. Dig. § 51.*]

9. ACTION (§ 11*)-PERSONAL INJURIES-NOTICE-STATUTES-POLICE POWER.

Laws N. M. 1903, p. 51, c. 33, in so far as it requires notice to the defendant of injuries to persons claiming damages within 90 days and the commencement of suit within a year after the injuries occurred, constituted a valid exercise of police power.

[Ed. Note.-For other cases, see Action, Dec. Dig. § 11.*]

10. STATUTES (§ 64*) -PARTIAL INVALIDITY-SEVERANCE.

The provisions of Laws N. M. 1903, p. 51, с. 33, requiring notice of personal injuries within 90 days and the commencement of suit within a year, being valid and severable from the provision requiring such suits to be brought in the District Court of the territory, were unaffected by any objection that might be made to the latter provision.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 58-66; Dec. Dig. $64.*]

On Rehearing.

11. RAILROADS (§ 33*)-TERRITORIAL LAWS-DISAPPROVAL BY CONGRESS.

Laws N. M. 1903, p. 51, c. 33, requiring notice to defendant of injuries to persons claiming damages within 90 days and the commencement of suit within a year after the injuries occurred, prior to its disapproval by Congress, was applicable to a cause of action against a railroad company that could be served within the territory, under Comp. Laws N. M. 1897, § 2963, providing that service might be made on any station agent or on a passenger or freight conductor of the defendant.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 33.*]

12. STATUTES (§ 56*) -TERRITORIAL LAWS-DISAPPROVAL BY CONGRESS.

Under Organic Act N. M. (Act Sept. 9, 1850, с. 49, 9 Stat. 449) § 7, providing that all laws passed by the Legislative Assembly and Governor shall be submitted to the United States Congress, and, if disapproved, shall be void, Laws N. M. 1903, p. 51, c. 33, requiring notice to the defendant of injuries to persons claiming damages within 90 days and the commencement of suit within a year, which was in force for five years before its disapproval by Congress, was valid and enforceable during such period.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 17; Dec. Dig. $56.*]

13. STATUTES (§ 56*) - TERRITORIAL LAWS-DISAPPROVAL BY CONGRESS,

The New Mexico Legislature having conferred a right of action for damages resulting from death, which did not exist at common law, by Laws 1903, p. 51, c. 33, declared that such right should be exercised only on condition that within 90 days after the given cause of action arose plaintiff should give specified notice to defendant. Held, that such provision was not in the nature of a limitation on the right of action, but was a condition precedent thereto, so that where plaintiff had not complied therewith, and therefore could not maintain her cause of action

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes while the act was in force, the subsequent disapproval of the act by Congress did not entitle plaintiff to sue.

[Ed. Note. For other cases, see Statutes, Dec. Dig. § 56.*]

In Error to the Circuit Court of the United States for the District of Colorado.

T. L. Philips (E. N. Clark, on the brief), for plaintiff in error. Charles A. Clark (M. B. Carpenter, on the brief), for defendant in

еггог.

Before HOOK and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS, District Judge. This is an action for damages by the widow of Henry A. Wagner on account of his death, resulting from injuries alleged to have been received by the derailment of a coach in which he was a passenger on the defendant railroad in New Mexico. The only material allegations of the petition are that said Wagner, on the 20th day of October, 1905, was a passenger for hire on the defendant's train of cars, which was so derailed through the negligence and carelessness of the defendant, and that by the statute of the territory of New Mexico a right of action is given to the surviving widow of the deceased.

After taking issue on the material allegations of the petition, the answer pleaded the statute of the territory entitled "An act establishing the law and procedure in certain cases," constituting a portion of chapter 33, Laws N. M. 1903, p. 51, which was amendatory of the statute giving the right of action to the surviving widow. After reciting in the preamble that it had become customary for persons claiming damages for personal injuries received in the territory to institute suits for recovery thereof in other states and territories, to the annoyance and oppression of the business interests of the territory and in derogation of the dignity of its courts, it declared that thereafter there should be no civil liability under either the common law or any statute of the territory on the part of any person or corporation for any personal injuries inflicted or death caused by such person or corporation in the territory, unless the person claiming damages therefor shall within 90 days after such injuries shall have been inflicted make and serve upon the person or corporation against whom the same is claimed, and at least 30 days before commencing suit, an affidavit, made before some officer within the territory authorized to administer oaths, in which the affiant shall state his name and address, the name of the person receiving the injury, if such person be other than the affiant, the character and extent of such injury in so far as the same may be known to affiant, the way or manner in which such injury was caused, in so far as the affiant has any knowledge, the names and addresses of witnesses to the happening of the facts or any part thereof known to the affiant; and unless the person so claiming such damages shall also commence an action to recover the same within one year after such injuries occur, in the District Court of the territory in and for the county in which such injuries occur, or in and for the county of the territory where the claimant or person against whom such claim is asserted resides, or, in the event such claim is asserted against a corporation, in the county in the territory where such corporation has its principal place of business; and said suit after having been commenced shall not be dismissed by the plaintiff unless by the written consent of the defendant filed in the case, or for good cause shown to the court; it being expressly provided and understood that such right of action is given only on the understanding that the foregoing conditions precedent are made a part of the law under which right to recover can exist for such injuries, except as herein otherwise provided. The act not to apply to cases in which the person or corporation against whom damages are claimed cannot be duly served with process in this territory. The answer then alleged that neither the plaintiff nor any one for her, within 90 days after the injuries alleged, or at any other time, made or served upon the defendant the required affidavit; and that the plaintiff has not attempted in any manner to comply with the provisions of said statute; and that the defendant could at all the times in said complaint mentioned and thenceforth have been served with process in said territory. Said special matter of defense so pleaded was, on motion of the plaintiff below, stricken out by the court. On trial to a jury there was a verdict and judgment for the plaintiff in the sum of $5,000, to reverse which the defendant below prosecutes this writ of error.

The statute of the territory enacted at the same session commanded that every railroad corporation operating in the territory should file its charter with the Secretary of the Territory, giving its principal place of business therein, designating some person upon whom service of process could be had in an action against the railroad company. As the petition alleges that the railroad company was operating a railroad in the territory in which the injury occurred, and as it could not so operate therein without complying with the foregoing statute, every person being presumed to obey the law until the contrary is made to appear, we must assume that the defendant company had complied with the statute, so that at the time of the accident and thenceforth there was such designated place of business and agent upon whom service of process and notice could have been made. We are required to assume further, on settled principles of law, that this condition of compliance with the statute thereafter continued to exist. The petition must show compliance with the precedent conditions, or, if they could not be complied with for any reason, the pleader should aver the ex

cuse.

The action of the court in striking out said portion of the answer was based upon the assumption that the statute is not applicable where the suit is instituted in a foreign jurisdiction, such as in the state of Colorado. As the record fails to show that the defendant saved any exception to this action of the court, it may not here be assigned for Notwithstanding this oversight of counsel, the defense was, nevertheless, open to the defendant. The federal courts take judicial notice of the public statute laws of the states and territories of the United States. They do not have to be pleaded or proved for such purpose. The petition discloses on its face that the action is predicated of a special statute of the territory, and this court will take cognizance of said amendatory act as inseparable from the statute declared on.

It is the recognized rule of procedure in the state of Colorado that, if the petition on its face does not show compliance with a statute giving a right of action in its essential prerequisites, objection thereto may be interposed by objecting to the introduction of any evidence at the trial; and it was effectually raised by the motion made by the defendant at the close of all the evidence for a directed verdict, and exception duly saved. Mills' Ann. Code Colo. § 55; Laws 1887, p. 111, c. 4; Marriott v. Clise, 12 Colo. 561, 563, 564, 21 Pac. 909; Toothaker v. City of Boulder, 13 Colo. 219, 223, 22 Pac. 468; McKee v. Howe, Adm'r, 17 Colo. 538, 539, 31 Pac. 115; Mackey v. Monahan, 13 Colo. App. 144, 146, 56 Pac. 680; Hall v. Linn, 8 Colo. 264, 268, 5 Pac. 641; Carpenter v. Sibley (Cal.) 94 Pac. 879, 15 L. R. A. (N.S.) 1143, decided March 13, 1908. This is logically correct, for the reason that the request for a directed verdict suggests, under the law and the undisputed evidence applied thereto, that the plaintiff is not entitled

to recover.

It is not to be entertained that a party given a right of action by a local statute can escape the performance of precedent acts, which condition the right, by resort to the forum of another jurisdiction. In upholding the statute of the state of Ohio, declaring that no action is maintainable in that state for wrongful death occurring in another state, except where the deceased was at the time of death a citizen of Ohio, the Supreme Court, in Chambers v. Baltimore & O. R. R. Co., 207 U. S. 142, 28 Sup. Ct. 34, 52 L. Ed. 143, held that the restriction operated equally upon the representative of the deceased, whether a citizen of Ohio or some other state; that the state, in the exercise of its police power, decides for itself to what extent actions may be instituted. Different states may have different policies at different times. The only constitutional limitation upon its exercise is that any policy it chooses to adopt must operate in the same way on its own citizens and those of other states.

This statute of New Mexico was directly involved in the germane case of Swisher v. A. T. & S. F. Ry. Co., 76 Kan. 97, 90 Pac. 812. The action was brought in a district court of Kansas by the representative of the deceased to recover damages against the railroad company for an injury resulting in death occurring in the territory of New Mexico. The Supreme Court of Kansas said:

"It does not seem reasonable that a cause of action created by the law of one state should be materially enlarged when the beneficiary moves across the state line and appeals to the court of another state to enforce his impaired right. The rule of state comity does not imply such a result. We think that an action in this state for a wrongful death occurring in another state or territory is incumbered with all the limitations and burdens which may have been imposed by the statutes of the state where the right of action was created. In this case the notice provided by section 1 of the act of 1903 is an essential part of the cause of action, and until such notice is given no cause or right of action exists either in New Mexico or elsewhere."