Consolidated Store-Service Co. v. Lamson Consol. Store-Service Co.

• Citation: 41 F. 833
• Parties: CONSOLIDATED STORE-SERVICE CO. v. LAMSON CONSOLIDATED STORE-SERVICE CO.
• Decision Date: 25 March 1890
• Court: U.S. District Court — District of Massachusetts

41 F. 833

CONSOLIDATED STORE-SERVICE CO. v. LAMSON CONSOLIDATED STORE-SERVICE CO.

United States Circuit Court, D. Massachusetts.

March 25, 1890

Causten Browne and Rodney Lund, for complainant.

Benjamin F. Thurston and M. B. Philipp, for defendant.

COLT J.

A motion has been filed by the defendant to dismiss the case for want of jurisdiction. The bill as amended alleges that the plaintiff corporation was organized under the laws of the state of Maine, and that the defendant corporation was created under the laws of the state of New Jersey, and has its office and principal place of business in Boston, Mass and that it has appointed, in writing, the commissioner of corporations for said commonwealth and his successor in office its true and lawful attorney, upon whom any process in any action or proceeding may be served, and in such writing agreed that any lawful process against it served upon said attorney should be of the same legal force and validity as if served upon said company, in accordance with chapter 330 of the Acts of the Legislature of said commonwealth passed in the year 1884. The law of Massachusetts provides, as a condition precedent to a foreign corporation undertaking to establish itself in business in the commonwealth, that it shall make the commissioner of corporations of Massachusetts its attorney for the purpose of its subjection to process. The agreement entered into by the defendant corporation says:

-- 'To be the true and lawful attorney of said corporation in and for the said commonwealth, upon whom all the lawful processes in any action or proceeding against said corporation in said commonwealth may be served in like manner, and with the same effect as if said corporation existed therein; and the said corporation hereby stipulates and agrees that any lawful process against said corporation which is served on its said attorney shall be of the same legal force and validity as if served on said corporation.'

For the privilege of doing business in Massachusetts the defendant corporation made and filed an agreement as above provided. The question which is presented by this motion is whether the courts of the United States can enforce this agreement in view of the act of March 3, 1887, (24 St. 552,) which provides that 'no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant. ' This act omitted the clause contained in the act of March 3, 1875, following the word 'inhabitant,' 'or in which he shall be found at the time of serving such process or commencing such proceeding;' that is, under the act of 1887, excepting in cases where jurisdiction is founded solely on the fact of diverse citizenship, suit must be brought in the district of which the defendant is an inhabitant. It is conceded that under the old law the court would have jurisdiction in this case, but it is insisted that, while a corporation may be found in a foreign state, it cannot become an inhabitant of such state. The question of where a party may be sued is in the nature of a personal exemption, and may be waived. If the court has jurisdiction by reason of the requisite citizenship of the parties, a defendant may consent to be sued anywhere. In the language of Chief Justice WAITE, in Ex parte Schollenberger, 96 U.S. 369:

'The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and

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