Western Loan Savings Company v. Butte Boston Consolidated Mining Company

• Decision Date: 01 June 1908
• Docket Number: No. 351,351
• Parties: WESTERN LOAN & SAVINGS COMPANY, Plff. in Err., v. BUTTE & BOSTON CONSOLIDATED MINING COMPANY
• Court: U.S. Supreme Court

210 U.S. 368

28 S.Ct. 720

52 L.Ed. 1101

WESTERN LOAN & SAVINGS COMPANY, Plff. in Err.,

v BUTTE & BOSTON CONSOLIDATED MINING COMPANY.

No. 351.

Submitted April 20, 1908.

Decided June 1, 1908.

Mr. John A. Shelton for plaintiff in error.

Messrs. Lewis O. Evans, C. F. Kelley, and John F. Forbis for defendant in error.

Mr. Justice Day delivered the opinion of the court:

The plaintiff in error brought this action at law against the defendant in error in the circuit court for the district of Montana. Jurisdiction was based solely on the diversity of citizenship of the parties. The plaintiff was a citizen of Utah and the defendant a citizen of New York. The judge of the circuit court dismissed the action for want of jurisdiction, and whether that decision was correct is the single question brought directly here by writ of error. The circuit court for the district of Montana was without jurisdiction of the action, because neither of the parties to it was a resident of that district, and the statute (25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508) requires that where the jurisdiction is founded on the fact that the parties are citizens of different states, suit shall be brought only in the district where one of them resides. But we have recently held that where diversity of citizenship exists, as it does here, so that the suit is cognizable in some circuit court, the objection that there is not jurisdiction in a particular district may be waived by appearing and pleading to the merits. Re Moore, April 20, 1908. [209 U. S. ——, ante, 585, 28 Sup. Ct. Rep. 585.] Anything to the contrary said in Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264, 27 Sup. Ct. Rep. 150, was overruled. The question here, therefore, is narrowed to the inquiry whether the defendant waived the objection to the jurisdiction.

While the conformity act, Revised Statutes, § 914, U. S. Comp. Stat. 1901, p. 684, provides that the practice, pleadings, forms, and modes of proceeding in civil causes, other than those in equity and admiralty, in the circuit and district courts of the United States, shall conform, as near as may be, to the practice, pleadings, and forms, and modes of proceedings existing at the time in like causes in courts of record of the state wherein such United States courts are held, nevertheless, in cases like the one under consideration, involving the jurisdiction of the Federal courts, the ultimate determination of such question is for this court alone. This doctrine finds illustration in the case of Mexican C. R. Co. v. Pinkney, 149 U. S. 194, 37 L. ed. 699, 13 Sup. Ct. Rep. 859, in which the subject is discussed by Mr. Justice Jackson, delivering the opinion of the court. In that case it was held that the Texas statute, which had been upheld by the courts of the state, giving to a special appearance, made solely to challenge the court's jurisdiction, the effect of a general appearance, was not binding upon the Federal courts sitting in the state, notwithstanding the provisions of § 914 of the Revised Statutes of the United States.

In the case at bar, defendant filed its demurrer to the complaint alleging: 1st, that the court has no jurisdiction of the subject of the action; 2d, that the court has no jurisdiction of the person of the defendant; 3d, that said complaint does not state facts sufficient to constitute a cause of action against this defendant; 4th, that the complaint is uncertain; 5th, that the complaint is unintelligible.

The learned judge, on the 7th of November, 1903, overruled the demurrer as to the first, second, and third grounds of the complaint, but sustained it upon the fourth and fifth grounds, in that the complaint was uncertain and unintelligible. Thereupon the plaintiff filed an amended complaint; the defendant repeated the same grounds of demurrer, and the same was submitted to the court on the first and second grounds,—those covering jurisdiction over the subject-matter of the action and jurisdiction over the person of the defendant, respectively,—and on the 26th of October, 1906, Judge Hunt, holding the circuit court for the district of Montana, in a well-considered opinion, held that, inasmuch as the demurrer was interposed upon jurisdictional and other grounds, and was not confined to jurisdiction over the person alone, but reached the merits of the action, the case being one within the general jurisdiction of the court, although instituted in the wrong district, the defendant had waived its personal privilege not to be sued in the Montana district, and had submitted to the jurisdiction. In support of his view Judge Hunt cited Interior Constr. & Improv. Co. v. Gibney, 160 U. S. 217, 40 L. ed. 401, 16 Sup. Ct. Rep. 272; Re Keasbey & M. Co. 160 U. S. 221, 40 L. ed. 402, 16 Sup. Ct. Rep. 273; Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853; Central Trust Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98, 14 Sup. Ct. Rep. 286; St. Louis & S. F. R. Co. v. McBride, 141 U. S. 127, 35 L. ed. 659, 11 Sup. Ct. Rep. 982; Lowry v. Tile, Mantel, & Grate Asso. 98 Fed. 817; Texas & P. R. Co. v. Saunders, 151 U. S. 105, 38 L. ed. 90, 14 Sup. Ct. Rep. 257. Thereafter, before any further steps were taken in the case the learned judge changed his ruling on the question of jurisdiction, and filed the...