Cricket S.S. Co. v. Parry

• Citation: 263 F. 523
• Decision Date: 14 January 1920
• Docket Number: 124.
• Parties: CRICKET S.S. CO. v. PARRY.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

263 F. 523

CRICKET S.S. CO. v. PARRY.

No. 124.

United States Court of Appeals, Second Circuit.

January 14, 1920

Kirlin, Woolsey & Hickox, of New York City (C. Keating, John M. Woolsey, and Harry D. Thirkield, all of New York City, of counsel), for plaintiff in error.

Silas B. Axtell, of New York City (Van Vechten Veeder, of New York City, of counsel), for defendant in error.

Before WARD, HOUGH, and MANTON, Circuit Judges.

WARD Circuit Judge.

This is a writ of error to a judgment entered on the verdict of a jury against the defendant, a corporation of the state of California, in favor of the plaintiff, an alien, for personal injuries sustained by him November 12, 1917, at Frontera Mexico, when a quartermaster on board the defendant's steamship Cricket.

April 11, 1918, the action was begun in the District Court of the United States for the Eastern District of New York by serving the summons and complaint on the master of the steamship filing them in the clerk's office and attaching the vessel, lying at Astoria in the port of New York. April 13 the defendant entered a special appearance for the purpose of releasing the steamship and for making a motion to set aside the attachment and dismiss the complaint. On the same day the steamship was released, the plaintiff accepting the defendant's bond in the sum of $20,000.

May 21 the District Judge, on defendant's motion, entered an order for the examination of the plaintiff under section 873 of the Code of Civil Procedure as to his place of residence; the time of defendant to answer or otherwise plead being extended for 20 days. June 18 the defendant moved to vacate the attachment for various irregularities and also to dismiss the complaint on the grounds:

'(a) That at the time of filing the summons and complaint herein plaintiff had not established a bona fide residence and was not domiciled in the county of Kings, state of New York.

'(b) That this action is improperly brought in the District Court of the United States for the Eastern District of New York.'

September 2, 1918, the motion was denied; the court finding that the plaintiff had proved himself to be a resident of the Eastern District of New York. We agree in this.

The transcript of record as originally filed contained none of these preliminary proceedings. The bill of exceptions, which relates only to proceedings at the trial, could not refer to them at all. No exception was required to be taken, but they should have been brought up with the writ of error. Regular practice required the defendant to apply under our rule 16 for a certiorari for diminution of the record; but, having filed the omitted parts with us in the form of an appendix, we will consider the proceedings as if the proper practice had been followed.

October 14 the defendant filed its answer on the merits, also setting up for a third defense the objection as to plaintiff's residence originally made:

'The plaintiff, John P. Parry, is not now and never has been a bona fide resident of the county of Kings, state of New York, and at the time of the commencement of this action was not, and is not now, domiciled in the county of Kings, state of New York, and defendant denies that this court has jurisdiction, either of the plaintiff to this action or of the cause itself.'

January 21, 1919, the case came on for trial before Judge Garvin; the defendant's counsel stating at the opening:

'Before you make your opening statement, Mr. Axtell, I would like to put a statement on the record. In this case the defendant is a foreign corporation, was sued by the plaintiff, who was an alien, and the question was once raised as to whether the United States District Court for this district had jurisdiction.

Judge Chatfield decided that against the defendant. I am not asking for any review of that decision, but I want to put on the record that we are appearing here solely because of that decision of Judge Chatfield, and that our appearance is not voluntary, but in pursuance of this ruling, and that we reserve whatever rights we have in appearing.'

There is no assignment of error relating to the question of jurisdiction. No doubt as the plaintiff claims, a defendant by giving bond to release his property from attachment appears in the suit with the same effect as if he had been served with process. But releasing his property from an illegal attachment does not waive a good objection to jurisdiction over his person, if it be reserved. Pacific Nat. Bank v. Mixter, 124 U.S. 721, 728, 8 Sup.Ct. 718, 31 L.Ed. 567. It amounts in such a case at most to a special appearance. When, however, the objection is not taken, it is waived, and the appearance becomes general.

The complaint shows on its face that the plaintiff was an alien and the defendant a corporation of California. No objection was taken under section 51 of the Judicial Code (Comp. St. Sec. 1033) that the defendant was not suable in the District Court for the Eastern District of New York, or anywhere but in the district of which it was an inhabitant, until the hearing in this court. The objection raised was as to the right of the plaintiff to bring his action in the Eastern district because he was not a resident of the district. It seems to us clear that the defendant waived the objection that it was not suable in the Eastern district of New York. This is assumed throughout the opinion of the court in Big Vein Coal Co. v. Read, 229 U.S.at page 32, 33 Sup.Ct. 694, 57 L.Ed. 1053.

This brings us to a consideration of the merits. The complaint charged the defendant with liability because the vessel was unseaworthy as to him in furnishing a 6/8' wire rope with a steel core for the drums of the winches. At the trial it was amended to charge unseaworthiness in the construction of the winches also.

The winches in question ran parallel...