Alla v. Kornfeld, 48 C 801.
| Decision Date | 08 June 1949 |
| Docket Number | No. 48 C 801.,48 C 801. |
| Citation | 84 F. Supp. 823 |
| Parties | ALLA v. KORNFELD et al. |
| Court | U.S. District Court — Northern District of Illinois |
Eiger, Siegal & Rothenberg, Chicago, Ill., for the plaintiff.
Samuel L. Bullas, Chicago, Ill., for defendants Dubin, Kornfeld, Perlman and Salavitch.
Harold I. Chayes and Martin O. Weisbrod, Chicago, Ill., for defendant Lillard.
The plaintiff in this cause of action is a citizen of Brazil. The complaint alleges that the defendants entered into a contract with plaintiff whereby he was to be the exclusive distributor of an automobile called the "Town Shopper" throughout South America. At the time of the execution of the contract, plaintiff turned over $15,000 to defendants, which he eventually was to receive back in the form of discounts on automobiles delivered to him for sale. No deliveries were ever made. The complaint is set up in two counts: (1) For breach of contract; (2) For fraud.
Defendants duly filed the following motions: (a) Dubin — Motion to dismiss for failure to state a claim upon which relief can be granted; (b) Kornfeld, Perlman and Salavitch — Motion to dismiss for failure to state a claim upon which relief can be granted; (c) Lillard — Motion that service of summons be quashed and that he be dismissed as a defendant, on the grounds that he was a defendant in a criminal case in this district when served with process and that he is a citizen of the United States but not of any State therein.
The motions of Dubin and of Kornfeld, Perlman and Salavitch to dismiss are denied. In the first place, they failed to submit briefs in support of their motions in accordance with Rule 7 of this district, which fact is sufficient ground for denial of the motions. Furthermore, the complaint on its face clearly states a cause of action, and is immune to a motion to dismiss for failure to state a claim upon which relief can be granted.
Lillard's motion, however, should be granted. It appears from an affidavit, submitted in support of his motion, that an arrest warrant was issued against him on April 30, 1948. He was arrested in Texas and was brought to this district. On May 13, 1948 an indictment was returned against him. On May 18, 1948 he entered a plea of not guilty to the indictment, and the cause was ordered to be held on the trial call. On June 10, 1948, while he was awaiting trial, he was served with summons in the instant cause.
The law is clear that, while awaiting trial, a defendant in a criminal prosecution is immune from civil process.
"* * * Until the indictment is disposed of and the prisoner is discharged he is constructively in custody of the law, and not until the happening of that event is he required to depart for the state of his domicile within a reasonable time or be deprived of his privilege to exemption from service of process." Adamy v. Parkhurst, 6 Cir., 61 F.2d 517, 518.
Lillard's further motion to be dismissed as a defendant challenges the jurisdiction of this Court to hear the controversy between plaintiff and him. His uncontroverted affidavit states that he has lived in Mexico continuously for a period of thirteen years, and that he is registered with the Department of State as a citizen of the United States. The pertinent grant of jurisdiction to the federal district courts is contained in the Judicial Code, 28 U.S. C.A. § 1332:
There is a recognized distinction between citizenship of the United States and citizenship of a particular State, and a person may be the former without being the latter....
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McClanahan v. Galloway, Civ. No. 7129.
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