Elk Garden Co. v. T.W. Thayer Co.

• Citation: 179 F. 556
• Parties: ELK GARDEN CO. v. T. W. THAYER CO.
• Decision Date: 10 May 1910
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

179 F. 556

ELK GARDEN CO. v. T. W. THAYER CO.

United States Circuit Court, W.D. Virginia.

May 10, 1910

R. M Page, J. C. Padgett, and J. I. Hurt, for plaintiff.

White &amp Penn, for defendant.

McDOWELL District Judge.

This is an action of ejectment brought originally in this court to recover a tract of land lying in this district. The plaintiff is a New Jersey corporation, and the defendant is a New York corporation. In accordance with the state statute the declaration and notice were served in this district on an agent of the defendant who had been designated by the defendant under the state law as its agent for the service of process. The defendant appears specially for the purpose, and demurs to the declaration for want of jurisdiction.

1. Ejectment is a local action (5 Words and Phrases, 4202; 4 Minor's Insts. (3d Ed.) 636), such as can be maintained only in the district where the land lies (Northern R. Co v. R. Co., 15 How. 233, 242, 14 L.Ed. 674; Livingston v. Jefferson, Fed. Cas. No. 8,411; Newell, Ejectment, p. 101). The language of the eighth section of the judiciary act of March 3, 1875, c. 137, 18 Stat. 472 (U.S. comp. St. 1901, p. 513), as contrasted with that of the act of June 1, 1872, c. 255, 17 Stat. 198 and section 738, Rev. St., leaves, I think, no doubt as to the intent to include suits at law, as well as in equity, 'to enforce a legal or equitable * * * claim to * * * real property within the district. ' The act of 1872 read:

'That when in any suit in equity * * * to enforce any legal or equitable lien or claim against real or personal property. * * * ' Section 13.

In Rev. St. Sec. 738, in both editions, the language is:

'When any defendant in a suit in equity to enforce any legal or equitable lien or claim * * * '

In the act of 1875 the language is:

'That when in any suit, * * * to enforce. * * *'

As was said in Crawford v. Burke, 195 U.S. 176, 190, 25 Sup.Ct. 9, 12 (49 L.Ed. 147):

'* * * A change in phraseology creates a presumption of a change in intent.'

The word 'suit' is applicable to an action at law as well as to a proceeding in equity. 7 Words and Phrases, 6769. And that the word was thus used in the eighth section of the act of 1875 seems to follow from the language of the first section of that act:

'That the circuit courts of the United States shall have original cognizance * * * of all suits of a civil nature at common law or in equity. * * * '

Hence, if the defendant had not been found within the district, but had been served with a warning order outside the district, or had been advertised for, under the eighth section of the judiciary act of 1875 (4 Fed.Ann.St. 381 (U.S. Comp. St. 1901, p. 513)), there would seem to be no ground for objection to the jurisdiction based on the fact that neither party is a resident of this district. Dick v. Foraker, 155 U.S. 404, 411, 15 Sup.Ct. 124, 39 L.Ed. 201; Greely v. Lowe, 155 U.S. 58, 15 Sup.Ct. 24, 39 L.Ed. 69. In the first mentioned of these cases, it does not appear how the defendant was notified of the pendency of the suit. In view of what had been said in Greely v. Lowe, it seems highly probable that the defendant was served with the warning order outside of the district of suit, or that the order had been published. In the case at bar the defendant was 'found' within this district. Railway Co. v. Harris, 12 Wall. 65, 81, 20 L.Ed. 354; Ex parte Schollenberg, 96 U.S. 369, 377, 24 L.Ed. 853; New England Co. v. Woodworth, 111 U.S. 138, 146, 4 Sup.Ct. 364, 28 L.Ed. 379; Southern Pac. R. Co. v. Denton, 146 U.S. 202, 207, 13 Sup.Ct. 44, 36 L.Ed. 942; In re Keasbey, 160 U.S. 221, 228, 16 Sup.Ct. 273, 40 L.Ed. 402; Spencer v. Stockyards Co. (C.C.) 56 F. 741.

In Greely v. Lowe, supra, 155 U.S. 74, 15 Sup.Ct. 28, 39 L.Ed. 69, it is said:

' * * * The entire object of the section (eighth of the Act of 1875) is to call in defendants who cannot be served within the district by reason of their absence or nonresidence.'

And the eighth section of the act of 1875 in express terms applies only in case a defendant 'shall not be an inhabitant of, or found within, the said district. ' Consequently jurisdiction of the case at bar is not given by the eighth section. If this had been a transitory action the fact that neither party is a resident of this district would be fatal to the jurisdiction. McCormick v. Walthers, 134 U.S. 41, 43, 10 Sup.Ct. 485, 33 L.Ed. 833; Shaw v. Quincy Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768; Southern Pacific R. Co. v. Denton, 146 U.S. 202, 13 Sup.Ct. 44, 36 L.Ed. 942; In re Keasbey, 160 U.S. 221, 229, 16 Sup.Ct. 273, 40 L.Ed. 402; R. Co. v. James, 161 U.S. 545, 16 Sup.Ct. 621, 40 L.Ed. 802; R. Co. v. Allison, 190 U.S. 326, 23 Sup.Ct. 713, 47 L.Ed. 1078.

The first section of the judiciary act of 1875 as originally enacted contained this language:

'And 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, or in which he shall be found at the time of serving such process or commencing such proceeding, except as hereinafter provided.'

18 Stat. 470. As this part of this section was amended by the act of March 3, 1887 (c. 373, 24 Stat. 552 (U.S. Comp. St. 1901, p. 508). See, also, Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508)), it reads:

'* * * And 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, 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 case at bar therefore presents a question which is worthy of at least some discussion. Confining our attention to a case where the sole plaintiff and sole defendant are citizens of different states, where neither is a resident of the district of suit, where the suit is strictly local in character, and where the defendant can be and has been found within the district of suit, which is the district where the property lies, did Congress intend by the change in the first section of the judiciary act made in 1887 to deprive the circuit court of said district of jurisdiction? In Spencer v Stockyards Co., supra (C.C.) 56 F. 741 (an action of ejectment), the facts were essentially the same as in the case at bar, and it was there held that the court had jurisdiction. And it seems to me that the conclusion there reached should be followed. In omitting the clause 'or in which he shall be found,' and in providing that 'suit shall be brought only in the district of the residence of either the plaintiff or the defendant,' Congress did not intend to forbid jurisdiction of local actions where neither party resides in the district of suit, and where the defendant is not found in the district. Dick v. Foraker and Greely v. Lowe, supra. It would therefore be so very anomalous to deny jurisdiction of a local suit to the federal court of the district where the property lies merely because the defendant is found and served with process in the district, that it seems proper to regard the amendment of 1887 as not intended to apply to local suits. The first dozen lines of the first section of the act of 1875 give the ...