Yanuszauckas v. Mallory S.S. Co.
| Decision Date | 15 February 1916 |
| Docket Number | 136. |
| Citation | 232 F. 132 |
| Parties | YANUSZAUCKAS v. MALLORY S.S. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Baltrus S. Yankaus, of New York City (Frank J. Felbel, of New York City, of counsel), for plaintiff in error.
James A. Hatch, of New York City (Wharton Poor, of New York City of counsel), for defendant in error, appearing specially.
Before LACOMBE, COXE, and WARD, Circuit Judges.
The plaintiff is an alien and the defendant is a Maine corporation. The plaintiff sues for damages for injuries sustained by him while being employed by the defendant in unloading the steamer Brazos, owned by the defendant, while the steamer was attached to Pier 38, North River. The suit was commenced in the District Court for the Eastern District of New York.
We think it clear that, unless both parties consent, the action cannot be maintained in the Eastern district for the reason that the plaintiff is an alien and the defendant is a Maine corporation.
The defendant appeared specially for the sole purpose of moving to dismiss. The statement in the notice of appearance that the defendant appears 'specially for the purpose of moving to dismiss the summons and complaint' prevents it from being considered as a general appearance. In Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237, the court says:
'It is only where he (the defendant) pleads to the merits in the first instance, without insisting upon the illegality that the objection is deemed to be waived.'
See also Shaw v. Spencer, 100 Mass. 382, 97 Am.Dec. 107, 1 Am.Rep. 115, and Waters v. Central Trust Co., 126 F. 469, 62 C.C.A. 45.
The defendant asserted this position at the earliest moment by moving to dismiss and appearing for that purpose only. The application for an order extending the time to plead generally in case it should be held that the suit was properly brought in the Eastern district, cannot be regarded as a waiver of the position taken in the motion to dismiss. It was only a wise precaution to enable the defendant to defend on the merits if the jurisdiction in the Eastern district should be upheld. The judge simply said, in effect that if he found that the action was properly brought in the Eastern district he would permit the defendant to answer and defend on the merits. To assert that the defendant was compelled to accept a situation which might result in a default being taken against him while the court was...
To continue reading
Request your trial
-
McLean v. McLean, 6631.
...Baldwin v. Iowa State Traveling Men's Ass'n, 8 Cir., 40 F.2d 357;Wilson v. Beard, 2 Cir., 26 F.2d 860;Yanuszauckas v. Mallory, S. S. Co., 2 Cir., 232 F. 132, 146 C.C.A. 324;Hlas v. Quaker Oats Co., 211 Iowa 348, 233 N.W. 514;Shepherd v. Starbuck, 118 Va. 682, 88 S.E. 59;Kingsley v. Great No......
-
McLean v. McLean
...... Men's Asso. (C.C.A. 8th) 40 F.2d 357; Wilson v. Beard (C.C.A.2d) 26 F.2d 860; Yanuszauckas v. Mallory S.S. Co. (C.C.A. 2d) 232 F. 132; Hlas v. Quaker Oats Co. 211 Iowa 348, 233 N.W. ......
-
McMurray v. Chase Nat. Bank of City of New York
...upon the illegality, that the objection is deemed to be waived. Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Yanuszauckas v. Mallory S. S. Co., 232 F. 132, 146 C. C. A. 324." The disposition of this point leaves for full determination the question of the court's jurisdiction. Various comp......
-
Vitkus v. Clyde S.S. Co.
...... situation is exactly the same as that in the case of. Yanuszauckas v. Mallory Steamship Co. (C.C.A. 2d. Circuit, February, 1916) 232 F. 132, . . . C.C.A. . . . . . ......