Bensinger Self-Adding Cash Register Co. v. National Cash Register Co.

• Decision Date: 02 May 1890
• Citation: 42 F. 81
• Parties: BENSINGER SELF-ADDING CASH REGISTER CO. v. NATIONAL CASH REGISTER CO. et al.
• Court: U.S. District Court — Eastern District of Missouri

42 F. 81

BENSINGER SELF-ADDING CASH REGISTER CO. v. NATIONAL CASH REGISTER CO. et al.

United States Circuit Court, E.D. Missouri, Eastern Division.

May 2, 1890

R. A. &amp Paul Bakewell, for plaintiff.

Sale &amp Sale, for defendants.

THAYER J.

The question raised by these motions has been foreclosed in this district by the decision of Justice BREWER, while circuit judge, in the cases of Booth v. Manufacturing Co., and Walker v. Railroad Co., 40 F. 1, and in Smith v Lyon, 38 F. 54. The suit at bar is an action ex delicto by a corporation of Illinois, having its chief office in Chicago, against a corporation of Ohio, having its chief office at Dayton, Ohio, and against a citizen of Missouri. The suit is one in which jurisdiction is dependent on diverse citizenship. The Ohio corporation, although it has an office and agent in this district for the transaction of its business, is not a resident of the district, within the meaning of the judiciary act of March 3, 1887, and cannot be sued in the federal court in this district, unless with its consent, by a corporation or citizen of Illinois. Booth v Manufacturing Co., supra. Nor does the fact that a citizen of Missouri has been joined as a party defendant serve to extend the jurisdiction of the court over the Ohio corporation, as it was held in the case of Smith v. Lyon, supra, (and the decision in that case has since been affirmed by the supreme court of the United States, 133 U.S. 315, 10 S.Ct. 303,) that, when the first section of the act of March 3, 1887, speaks of suits being brought 'only in the district of the residence of either the plaintiff or the defendant,' the words 'plaintiff' and 'defendant' are used in a collective sense, and include all who are plaintiffs or defendants, so that all parties on one or the other side of the controversy must be residents of the district to sustain the jurisdiction.

The contention that the Ohio corporation has waived its right to object to the jurisdiction of the court is not tenable. Conceding that this is a case in which the corporation might by its acts submit itself to the jurisdiction of the court yet it clearly has not done so. The first step taken by it after being served was to file the present motion to dismiss for want of jurisdiction. The fact that it maintains an office and an agent in this state for the transaction of its business does not, as contended, amount to a waiver of its right, under the...