Camp v. Gress

• Decision Date: 20 July 1917
• Docket Number: 1527.
• Citation: 244 F. 121
• Parties: CAMP et al. v. GRESS.
• Court: U.S. Court of Appeals — Fourth Circuit

244 F. 121

CAMP et al. v. GRESS.

No. 1527.

United States Court of Appeals, Fourth Circuit.

July 20, 1917

T. D Savage and Thomas H. Willcox, both of Norfolk, Va. (Willcox Cooke & Willcox, of Norfolk, Va., on the brief), for plaintiffs in error.

William M. Toomer, of Jacksonville, Fla., and D. Lawrence Groner, of Norfolk, Va., for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

In this action for breach of contract the plaintiff recovered judgment for $31,361.10. The contract dated August 18, 1913 between M. V. Gress, on the one part, and P. D. Camp, P. R Camp, and John M. Camp jointly, on the other, provided that a charter should be obtained for a joint-stock company to be organized by December 1, 1913, to be called the Levy County Lumber Company. The Camps were to convey to the corporation a large body of timber in Levy County, Fla., at a valuation of $325,000, and Gress, a sawmill plant in the city of Jacksonville, at a valuation of $125,000. The stock of the corporation was to be issued in the proportion of thirteen-eighteenths to the Camps and five-eighteenths to Gress. On December 31, 1914, the contract was breached by the formal refusal of the Camps to carry it out. The grounds of the refusal, as expressed by P. D. Camp, were the failure of the health of his brothers and the fall in the price of lumber, making certain in his opinion the operation of the projected business at a loss.

The damages claimed at the trial were the losses by Gress by reason of: (1) A large increase in the value of the timber between the date of the contract and the breach; and (2) a large decrease in the value of the mill by reason of the lack of timber to saw. The claims were for a much larger amount than that found by the jury.

We consider first the point that the District Court should have sustained the pleas in abatement challenging the jurisdiction of the court. Gress is a resident of Florida. P. D. Camp and P. R. Camp are residents of the Eastern district of Virginia. John M. camp is a resident of the Eastern district of North Carolina, and accepted service of the summons in the Eastern district of Virginia. His contention is that he can be sued only in the district of his own residence or in the district of the residence of the plaintiff. The other defendants contend that, since the obligation was joint, and not several, the action cannot be maintained against them without making John M. Camp a party, that he cannot be sued in the Eastern district of Virginia, and that therefore the action should be dismissed as to all. These jurisdictional questions depend on the construction of sections 50 and 51 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 (Comp. St. 1916, Secs. 1032, 1033)), taken in connection.

Section 50 provides:

'When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and nonjoinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit.'

Section 51 provides, among other things:

' * * * No civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'

The act of 1875 (Act March 3, 1875, c. 137, 18 Stat. 470) provided that even a single defendant might be sued either in the district of his residence or the district where he was found. Section 51 of the Judicial Code, taking the place of the corresponding section of the act of 1875, leaves out the provision that a defendant may be sued in the district in which he is found. Therefore, where there is only one defendant, and the jurisdiction depends, as in this case, on diversity of citizenship alone, the suit must be brought in either the district of the residence of the defendant or of the plaintiff. Although the Judicial Code received great consideration, the act of 1839 (Act Feb. 28, 1839, c. 36, Sec. 1, 5 Stat. 321 (Comp. St. 1916, Sec. 1032)) was re-enacted as section 50, and by it the provision is made as to an action against two or more defendants, one or more of them being neither inhabitants of nor found within the district in which the suit is brought and not voluntarily appearing, that the court may entertain jurisdiction without prejudice to the rights of the party not regularly served nor voluntarily appearing. The words 'found in the district,' left out of one section and retained in the other, must have significance. If they have, the sections, construed together, must mean that for purposes of jurisdiction a single defendant must reside in the district in which the suit is brought, but where there are several defendants the court has jurisdiction of all if one or more are residents of the district and the others are found there. We find no controlling authority on the subject, but this construction, required as it seems to us by the letter of the statutes, is the more readily adopted because it facilitates the administration of justice, and obviates in a degree the necessity of a multiplicity of actions in different districts on the same cause of action.

There is no foundation for the argument that the defendant John M Camp was not 'found' in the Eastern district of Virginia. The pleas to the...