McCormick Harvesting Machine Co v. Walthers

• Citation: 10 S.Ct. 485,33 L.Ed. 833,134 U.S. 41
• Parties: MCCORMICK HARVESTING MACHINE CO. v. WALTHERS
• Decision Date: 03 March 1890
• Court: United States Supreme Court

10 S.Ct. 485

134 U.S. 41

33 L.Ed. 833

MCCORMICK HARVESTING MACHINE CO. v. WALTHERS.

March 3, 1890.

Walter J. Lam and Ricketts & Wilson, for plaintiff in error.

Nathan S. Harwood and John H. Ames, for defendant in error.

FULLER, C. J.

Walthers brought his action on the 21st day of July, 1887, in the circuit court of the United States for the district of Nebraska, against the McCormick Harvesting Machine Company, alleging that he was a citizen and resident of the state of Nebraska, and that the defendant was a corporation duly incorporated and existing under the laws of the state of Illinois, 'but having a local habitation and managing agent in Nebraska,' for falsely and maliciously, and without probable or reasonable cause, suing out two attachments against him, and placed his damages at $10,500, for which he asked judgment and costs. The defendant answered, justifying the issuing of the writs of attachment, and denying any liability by reason thereof; and also pleaded in set-off and counter-claim two judgments against Walthers, one for $957.93 and $28 costs, and one for $2,894.01 and $26 costs, both bearing interest at 10 per centum per annum from June, 1887; and prayed judgment against the plaintiff for said several sums, and for interest and costs. Subsequently leave was granted to the McCormick Company to withdraw its answer and to file a plea, which averred 'that now and at the commencement of this action the said Charles W. Walthers was a citizen and inhabitant of the state of Nebraska, and this defendant was a corporation duly organized under the laws of the state of Illinois, and was and is a citizen, resident, and inhabitant of the state of Illinois, and was not and is not a citizen, resident, or inhabitant of the state or district of Nebraska; that a summons in this action was served on this defendant's agent in the state of Nebraska, where this defendant has an office, said agent being only its local managing agent for its business in Nebraska; and this defendant says that this action was brought since the 15th day of March, 1887, and this defendant says that it is not subject to be sued or to be summoned by original process out of this court in this cause in this judicial district;' and defendant prayed judgment that the action might be abated. This plea was upon hearing overruled, and the defendant ruled to answer in 30 days, and plaintiff to reply in 45 days, and a reply in general denial of the answer was filed, the answer being treated as if still a pending pleading. The case came on for trial, and resulted in a verdict for the plaintiff, assessing his damages in the sum of $1,338.57, upon which judgment was entered. A motion for new trial was made and denied, and a writ of error sued out from this court, which the defendant in error now moves to dismiss, uniting with that motion a motion to affirm. No bill of exceptions was taken, and the denial of the jurisdiction of the circuit court is the only question which can be raised upon the record; and this has no relation to the mode of service. The defendant was a foreign corporation, and the statute of Nebraska provided that 'when the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.' Code Civil Proc. § 75; Comp. St. Neb. 1885, p. 637. The plea admits service upon the company's local managing agent, and as the defendant entered full appearance and answer, and, after the withdrawal of the answer and the filing of the plea and its disposition, went to trial on the merits upon issue joined on that answer, the objection to the jurisdiction, if it can be urged at all, must be confined to want of power to entertain the suit outside of defendant's own district.

By section 1 of the act of March 3, 1887, (24 St. 552,) as corrected...