Cole v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Cole v. United States, 298 F. 86 (8th Cir. 1924)
• Decision Date: 28 February 1924
• Docket Number: 6251.
• Parties: COLE v. UNITED STATES.

298 F. 86

COLE v. UNITED STATES.

No. 6251.

United States Court of Appeals, Eighth Circuit.

February 28, 1924

Rehearing Denied May 29, 1924.

Lewis O'Connor and Berryman Henwood, both of Hannibal, Mo., for plaintiff in error.

Allen Curry, U.S. Atty., and Carroll W. Harlan, Asst. U.S. Atty both of St. Louis, Mo.

Before KENYON, Circuit Judge, and MUNGER, District Judge.

KENYON Circuit Judge.

The facts in this case up to the time of appearance and answer in the District Court of the Eastern Division of the Eastern District of Missouri, with some differences as to detail, are practically the same as in Oscar Steers, Plaintiff in Error, v. United States of America, Defendant in Error, 297 F. 116 (opinion this day filed).

The alleged contempt arises out of the claimed violation of the same injunctional order issued by the United States District Court of the Northern Division of the Eastern District of Missouri. August 4, 1922, the district attorney for the Eastern District of Missouri filed in the office of the clerk of the District Court of the United States for the Northern Division of the Eastern District of Missouri a petition for citation for contempt in the case of United States of America v. Arthur Cole, Defendant, marked 'Criminal Cause No 537.' This was supported by affidavit, and the following indorsement appears thereon:

'No. 537. In the District Court of the United States for the Eastern District of Missouri. United States of America, Complainant, v. Arthur Cole, Defendant. Petition. Filed Aug. 4, 1922, (Signed) Jas. J. O'Connor, Clerk, by (Signed) Lucius G. Ross, Deputy.'

Hon. Andrew Miller, Judge, issued an attachment for contempt which was presumably filed in the United States District Court for the Northern Division of the Eastern District of Missouri; the caption thereof being as follows:

'Filed in U.S. District Court under date of August 4th, 1922.

'Be it remembered that at a District Court of the United States of America in and for the Northern Division of the Eastern District of Missouri, begun and holden on Friday, the 4th day of August, 1922, at the United States court room in the city of St. Louis and state of Missouri, the Honorable Andrew Miller, Judge, presiding and holding said court, the following proceedings were had, to wit: United States of America v. Arthur Cole.'

This order provided for an attachment of Cole, and required him to show cause before 'this court' at St. Louis, Mo., on August 12, 1922, why he should not be punished for contempt.

In pursuance of the same on August 18th he filed answer to the complaint. August 28, 1922, he filed a plea to the jurisdiction claiming the case should be tried in the Northern Division of said Eastern District of Missouri. The plea to the jurisdiction was overruled, the case was tried to a jury, and Cole was convicted.

For the reasons stated in the opinion in case No. 6252, Oscar Steers, Plaintiff in Error, v. United States of America (opinion this day filed), plaintiff in error had the right to have the case tried in the Northern Division of the Eastern District of Missouri unless he waived the same and consented to trial in said Eastern Division.

In filing answer and in failing to raise the plea of jurisdiction before answer he waived his right to place of trial in the Northern Division. It is not a question of attempting to confer jurisdiction of the subject-matter by agreement as in the case of St. Louis Smelting & Refining Co. v. Nix (C.C.A.) 272 F. 977. Jurisdiction of the subject-matter unquestionably existed. It was merely a question of conferring jurisdiction of the person, and was in the nature of a waiver of venue. Such rights can be waived where the subject-matter is within the cognizance of the tribunal. Stallings v. Splain, 49 App.D.C. 38, 258 F. 510; McPhee & McGinnity Co. v. Union Pac. R. Co. et al., 158 F. 5, 87 C.C.A. 619; Black on Constitutional Law, 567; 1 Bishop, Criminal Procedure, Sec. 123; State v. Kinney, 41 Iowa, 424; Busse v. Barr, 132 Iowa, 463, 109 N.W. 920; Hawkins v. Bleakley (D.C.) 220 F. 378; U.S. v. Gale, 109 U.S. 65, 3 Sup.Ct. 1 27 L.Ed. 857. The government by proceeding to trial in the Eastern Division...