De Dood v. Pullman Co., 298.

• Citation: 57 F.2d 171
• Decision Date: 04 April 1932
• Docket Number: No. 298.,298.
• Parties: DE DOOD v. PULLMAN CO.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

57 F.2d 171 (1932)

DE DOOD v. PULLMAN CO.

No. 298.

Circuit Court of Appeals, Second Circuit.

April 4, 1932.

Furst, Schwartz & Schwager, of New York City (Julius Schwartz and Samuel K. Goldstein, both of Brooklyn, N. Y., of counsel), for appellant.

Alexander & Green, of New York City (Clifton P. Williamson and Lasater Terrell, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

It is conceded, as it must be, that without the defendant's consent the action could not be brought in the Eastern district of New York, Seaboard Rice Milling Co. v. Chicago, R. I. & P. R. Co., 270 U. S. 363, 46 S. Ct. 247, 70 L. Ed. 633, nor process of the court below be served in the Southern district, Sewchulis v. Lehigh Valley Coal Co., 233 F. 422 (C. C. A. 2); Robertson v. Labor Board, 268 U. S. 619, 622, 45 S. Ct. 621, 69 L. Ed. 1119. The sole issue is whether correspondence passing between the parties prior to the institution of the suit constituted a waiver by defendant of objection to the venue and a consent to service of process outside the territorial limits of the court.

Under date of August 11, 1931, Mr. O'Connell, the defendant's assistant claims attorney, wrote in reply to an inquiry from the plaintiff's attorney, "We have no objection to suit being filed in New York." Subsequently the plaintiff's attorney wrote that he was drawing a complaint in an action "to be instituted in the United States District Court of New York (Eastern District)," and asked to be advised "what attorney will represent you in the suit so that we may transmit the summons and complaint to him." Mr. O'Connell in reply gave the name of defendant's attorneys, and four days later wrote again, as follows: "On September 26th, I wrote you in the Y. De Dood case, advising that our attorneys at New York are Messrs. Alexander & Green, 120 Broadway. So that there may be no misunderstanding, I would prefer that the service of the summons and complaint be made in the regular manner upon our representative, Mr. R. V. Watson, District Superintendent, Pennsylvania Terminal Station, New York."

Shortly after the receipt of this letter, the complaint was filed, and the following day the summons and complaint were served on E. P. Schwotzer, assistant district superintendent of the Pullman Company, at the Pennsylvania Station. Promptly thereafter the defendant made the motion which resulted in the order now before us.

If a court has jurisdiction over the subject-matter of a controversy, it may acquire jurisdiction over the person of a defendant by his consent as well as by its own lawful process. Such consent may be given in various ways (see 44 Harv. L. Rev. 1276, note 2, and cases there cited) and may be subject to conditions; for example, a person beyond the territorial boundaries of a court may agree to submit himself to its jurisdiction provided notice of suit or a summons shall be there served upon him. If the condition put upon his consent is complied with, judicial opinion holds that he is regularly before the court, although such service, in the absence of consent, would be wholly ineffectual. See Gilbert v. Burnstine, 255 N. Y. 348, 355, 174 N. E. 706, 73 A. L. R. 1453; Wilson v. Seligman, 144 U. S. 41, 44, 12 S. Ct. 541, 36 L. Ed. 338; Grover & Baker Sewing Mach. Co. v. Radcliffe, 137 U. S. 287, 298, 11 S. Ct. 92, 34 L. Ed. 670; Montgomery Jones & Co. v. Liebenthal & Co., 1898 1 Q. B. 487. Similarly, a defendant may consent to be sued in a district not authorized by section 51 of the Judicial Code (28 USCA § 112). The section gives him a personal privilege which he may insist upon or waive at his election. Interior Construction Co. v. Gibney, 160 U. S. 217, 219, 16 S. Ct. 272, 40 L. Ed. 401; Seaboard Rice Milling Co. v. Chicago, R. I. & P. Ry. Co., 270 U. S. 363, 365, 46 S. Ct. 247, 70 L. Ed. 633. Hence it seems obvious that his waiver may be made conditional upon compliance with terms which he may impose.

The defendant urges that it never consciously waived its privilege of insisting upon suit...