Commercial Casualty Ins Co v. Consolidated Stone Co, No. 75

CourtUnited States Supreme Court
Writing for the CourtVAN DEVANTER
Citation278 U.S. 177,73 L.Ed. 252,49 S.Ct. 98
Decision Date02 January 1929
Docket NumberNo. 75
PartiesCOMMERCIAL CASUALTY INS. CO. v. CONSOLIDATED STONE CO

278 U.S. 177
49 S.Ct. 98
73 L.Ed. 252
COMMERCIAL CASUALTY INS. CO.

v.

CONSOLIDATED STONE CO.

No. 75.
Argued Nov. 27, 1928.
Decided Jan. 2, 1929.

Messrs. Rees H. Davis and Paul Lamb, both of Cleveland, Ohio, for Commercial Casualty Ins. Co.

Mr. Norman A. Emery, of Youngstown, Ohio, for Consolidated Stone Co.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

We here are concerned with a certificate wherein the Circuit Court of Appeals for the Sixth Circuit, pursuant to section 346, title 28, United States Code (28 USCA § 346), propounds a question of law arising in a case pending in that court.

Page 178

The material facts are: A corporation of Indiana brought a transitory action at law against a corporation of New Jersey in a federal District Court in Ohio. That court's jurisdiction was invoked only on the ground that the parties were citizens of different States, and the value of the matter in controversy was in excess of the statutory requirement. The defendant was doing business in Ohio and, in accord with the state law, had designated a local agent upon whom process against it might be served. Summons was duly served within the district upon that agent. The defendant neither appeared nor answered within the period limited therefor, and judgment went against it by default. Later in the same term the defendant moved that the judgment be vacated and the action dismissed because the action was brought in a district in which neither party resided. That motion was denied. The defendant then moved that the judgment be vacated, and leave to defend be granted, on the asserted ground that the summons, although forwarded by the agent to the defendant's home office, had been overlooked. That motion also was denied. The defendant then sued out a writ of error from the Circuit Court of Appeals. The certificate-after eliminating the ruling on the second motion-says of the asserted basis of the first motion:

'Familiar cases say that this defect in the jurisdiction pertains to the venue, and defendant may either insist upon it or may waive it. In this case there was neither affirmative insistence nor affirmative waiver. Defendant allowed the time for effective objections to expire and did nothing.'

Shortly stated, the question propounded is whether it was open to the defendant, after permitting the cause to proceed to judgment by default, to object that the action was not brought in the district of the residence of either party.

Page 179

The pertinent statutes are sections 41 and 112, title 28, United States Code (28 USCA §§ 41, 112). One provides that district courts shall have 'original jurisdiction' of certain classes of civil suits, including suits 'between citizens of different states,' where the value of the matter in controversy, exclusive of interest and costs, exceeds $3,000. The other provides that '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.'

These provisions often have been examined and construed by this court. Summarized, the decisions are directly to the effect that the first provision...

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105 practice notes
  • Hoffman v. Blaski Sullivan v. Behimer, Nos. 25
    • United States
    • United States Supreme Court
    • June 13, 1960
    ...waives venue by failing seasonably to assert it, or even simply by making default. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179—180, 49 S.Ct. 98, 99, 73 L.Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. But th......
  • In re Micron Tech., Inc., 2017-138
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 15, 2017
    ...have a case heard in the court of proper venue may be lost unless seasonably asserted."); Commercial Cas. Ins. Co. v. Consol. Stone Co. , 278 U.S. 177, 178–81, 49 S.Ct. 98, 73 L.Ed. 252 (1929) (discussing requirement that venue be "seasonably" raised and finding waiver where the "[d]efendan......
  • In re Josephson, No. 4854.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 23, 1954
    ...it might be maintained, in a district not having statutory venue. See Commercial Casualty Ins. Co. v. Consolidated Stone Co., 1929, 278 U.S. 177, 49 S.Ct. 98, 73 L. Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 1939, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. Reading § 1404(a) i......
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election.' Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 99, 73 L.Ed. 252. Being a privilege, it may be lost. It may be lost by failure to assert it seasonably, by formal submissi......
  • Request a trial to view additional results
105 cases
  • Hoffman v. Blaski Sullivan v. Behimer, Nos. 25
    • United States
    • United States Supreme Court
    • June 13, 1960
    ...waives venue by failing seasonably to assert it, or even simply by making default. Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179—180, 49 S.Ct. 98, 99, 73 L.Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. But th......
  • In re Micron Tech., Inc., 2017-138
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • November 15, 2017
    ...have a case heard in the court of proper venue may be lost unless seasonably asserted."); Commercial Cas. Ins. Co. v. Consol. Stone Co. , 278 U.S. 177, 178–81, 49 S.Ct. 98, 73 L.Ed. 252 (1929) (discussing requirement that venue be "seasonably" raised and finding waiver where the "[d]efendan......
  • In re Josephson, No. 4854.
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 23, 1954
    ...it might be maintained, in a district not having statutory venue. See Commercial Casualty Ins. Co. v. Consolidated Stone Co., 1929, 278 U.S. 177, 49 S.Ct. 98, 73 L. Ed. 252; Neirbo Co. v. Bethlehem Shipbuilding Corp., Ltd., 1939, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. Reading § 1404(a) i......
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...privilege respecting the venue, or place of suit, which he may assert, or may waive, at his election.' Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 99, 73 L.Ed. 252. Being a privilege, it may be lost. It may be lost by failure to assert it seasonably, by formal submissi......
  • Request a trial to view additional results

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