Chesapeake & O. Ry. Co. v. Coffey

• Decision Date: 14 January 1930
• Docket Number: No. 2891.,2891.
• Citation: 37 F.2d 320
• Parties: CHESAPEAKE & O. RY. CO. v. COFFEY.
• Court: U.S. Court of Appeals — Fourth Circuit

37 F.2d 320 (1930)

CHESAPEAKE & O. RY. CO. v. COFFEY.

No. 2891.

Circuit Court of Appeals, Fourth Circuit.

January 14, 1930.

Samuel H. Williams and Armistead R. Long, both of Lynchburg, Va. (Harrison, Long & Williams, of Lynchburg, Va., on the brief), for appellant.

Charles Curry, of Staunton, Va. (Curry Carter, of Staunton, Va., on the brief), for appellee.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is a suit brought by appellee, who was plaintiff below, against appellant, who was defendant below, in the District Court of the United States for the Western District of Virginia, at Lynchburg. The defendant owns and operates a line of railroads running through both the Eastern and Western Districts of Virginia, with its chief office in Richmond, in the said Eastern District. The plaintiff, who was a citizen of the state of Florida, claimed to have been injured by having her back broken while crossing the defendant's railroad track in an automobile, driven by another, at a grade crossing within the corporate limits of the town of Glasgow, in Rockbridge county, Va., in said Western District. The automobile in which the plaintiff was riding was traversing what was known as the Lexington and Lynchburg road. Plaintiff was a member of a party consisting of a number of persons who had been on a pleasure trip to Natural Bridge, and was returning from there when the accident happened.

The injury to the plaintiff occurred on September 12, 1926. This suit was instituted on September 8, 1927, only a few days before the Virginia Statute of Limitations, as to actions of this character, would have run against this suit. A summons was issued on the day the suit was brought and served on defendant, and required defendant to appear at the first October, 1927, rules. The declaration was filed at the first October rules, but the defendant made no appearance at rules. Defendant's first appearance was on January 2d, the first day of the term of the District Court, at Lynchburg, at which time an appearance was made by counsel for the defendant, and an order was entered giving leave to the plaintiff to amend her declaration so as to correct a mistake in her given name, which order concluded as follows:

"And thereupon the defendant, by its attorney, filed its plea of not guilty, and the defendant is given thirty days from this date within which to file its plea of contributory negligence."

This concluding paragraph was admittedly written into the order by one of the attorneys for the defendant.

On January 7th, notice was given, by attorneys for the defendant, of a motion to be made on January 16th, for leave to withdraw the plea of the general issue entered on January 2d, and to file a plea in abatement to the jurisdiction of the court, under section 52, Judicial Code (28 USCA § 113). This motion was made and argued before the court, and the judge below refused leave to the defendant to withdraw the plea.

On March 8, 1928, attorneys for plaintiff asked leave to file an amended declaration, which leave was granted, and the declaration was amended so as to allege that the plaintiff was a citizen as well as an inhabitant of the state of Florida; the original declaration having stated that she was an inhabitant of that state. On March 24th, the defendant, by counsel, appearing solely for the purpose of making the motion, again moved that it be allowed to withdraw its appearance because of the filing of amended declaration, which motion was overruled.

A demurrer to the declaration was overruled and leave given to further amend the declaration so as to strike out the allegation that the defendant resided in the Western District of Virginia. Again the defendant demurred to the amended declaration, and the demurrer was overruled. On motion of the plaintiff the defendant filed a written statement of its ground of defense, and on motion of the defendant the plaintiff filed a bill of particulars.

In January, 1929, a trial was had, and the jury rendered a verdict for plaintiff in the sum of $25,000. Motion was made to set aside the verdict, which motion was overruled and judgment entered for the plaintiff, from which action of the court below this appeal was taken.

The first assignment of error is that the court erred in denying the defendant's motion for leave to withdraw its appearance and plea of general issue, and to file instead a plea to the jurisdiction of the court; it being contended that the court had a discretionary power to grant such permission. Power of the court to permit withdrawal of appearance and withdrawal of plea of general issue is usually discretionary. 4 C. J. 1371; Brookings State Bank v. Federal Reserve Bank (D. C.) 291 F. 659; Audenried v. East Coast Milling Co. (C. C.) 124 F. 697.

It makes no difference whether the court had, under the Virginia statute, such power or not, as the judge below denied the motion, and we think properly did so. In an opinion passing on the motion the learned judge below said:

"* * * Consequently a valid permission now given to the defendant to set up the objection that the action was brought in the wrong district would necessarily have the effect of barring the plaintiff's remedy without hope of a trial on the merits. The negligence of the plaintiff's attorney in forgetting the existence of the federal venue statutes in September was as it seems to me no greater than the negligence of the defendant's attorney in forgetting the existence of these statutes in January. And I can see no propriety in punishing the negligence of plaintiff's counsel so severely as to bar the plaintiff's remedy, while wholly excusing the same kind and as I believe the same degree of negligence on the part of the defendant's attorney."

A general appearance and a plea to the merits waive any right to object to venue.

"Where the case is one of which the court can take jurisdiction, a general appearance to the merits by defendant waives all defects in the service and all special privileges of the defendant in respect to the particular court in which the action is brought.

"The right of defendant to insist upon suit against him being brought only in the district whereof he is an inhabitant is a personal privilege which he may waive, and he does waive it by pleading to the merits.

"The party who in the first instance appears in a suit and pleads to the merits waives any right to challenge thereafter the jurisdiction of the court on the ground that the suit has been brought in the wrong district."

Note in St. Louis & San Francisco Railway Co. v. Lucy McBride et al., 141 U. S. 127, 11 S. Ct. 982, 35 L. Ed. 659.

See, also, 15 Rose's Notes, pp. 785, 786, 787, and 788.

"The objection that a particular Federal circuit court is without jurisdiction of a suit between citizens of different states because neither of the parties is a resident of the district is waived by demurring upon grounds reaching to the merits of the cause of action in addition to jurisdictional grounds, where, under the local practice, defendant could have made a special appearance by motion aimed at the jurisdiction of the court over his person, or by motion to quash the service of process." Western Loan & Savings Co. v. Butte & Boston Consolidated Mining Co., 210 U. S. 368, 28 S. Ct. 720, 52 L. Ed. 1101.

On this question Judge Waddill, speaking for the court, in Wetzel & T. Ry. Co. v. Tennis Bros. Co. (C. C. A.) 145 F. 458, 464, 7 Ann. Cas. 426, said:

"Nothing is better settled than that after a plea in bar, a plea in abatement will not be received, except for new matter arising after the commencement of the suit."

See authorities cited.

The Virginia statute on this question is found in the Acts of the Virginia Assembly of 1920, at page 28, and reads as follows:

"Where the declaration or bill shows on its face proper matter for the jurisdiction of the court no exception for want of such jurisdiction shall be allowed unless it be taken by plea in abatement. No such plea or any other plea in abatement shall be received after the defendant has demurred, pleaded in bar or answered to the declaration or bill, nor after the rules next succeeding the rules at which the declaration or bill is filed."

In Wetzel & T. Ry. Co. v. Tennis Bros. Co., supra, this court held under a West Virginia statute, in effect, similar to the Virginia statute, that a plea in abatement would not be received after a general appearance and after a plea in bar.

In St. Louis & San Francisco Railway Co. v. Lucy McBride et al., supra, the court said:

"Without multiplying authorities on this question, it is obvious that the party who in the first instance appears and pleads to the merits waives any right to challenge thereafter the jurisdiction of the court on the ground that the suit has been brought in the wrong district. Charlotte First Nat. Bank v. Morgan, 132 U. S. 141 10 S. Ct. 37, 33 L. Ed. 282; Fitzgerald & M. Const. Co. v. Fitzgerald, 137 U. S. 98 11 S. Ct. 36, 34 L. Ed. 608."

The second assignment of error is that the court erred in overruling defendant's objection to the jurisdiction of the court under the amended declaration, changing the allegation that the plaintiff was an inhabitant of the state of Florida to one that she was a citizen of the state of Florida. On this point the judge below said:

"The amended declaration asserts that the plaintiff was a citizen of Florida at the institution of the suit. There is no contention made that the counsel for the defendant ever noticed the use of the word `inhabitant' instead of the word citizen in the original declaration until I called attention to it in my former opinion. It follows that the present motion is based on the theory that the error of plaintiff's counsel in describing his client as an `inhabitant' of Florida, rather than as a citizen of Florida, furnishes a sufficient reason for disregarding the waiver by the defendant's counsel of the objection...