Interior Const Imp Co v. Gibney, No. 99

CourtUnited States Supreme Court
Writing for the CourtGRAY
Citation40 L.Ed. 401,160 U.S. 217,16 S.Ct. 272
Decision Date16 December 1895
Docket NumberNo. 99
PartiesINTERIOR CONST. & IMP. CO. v. GIBNEY et al

160 U.S. 217
16 S.Ct. 272
40 L.Ed. 401
INTERIOR CONST. & IMP. CO.

v.

GIBNEY et al.

No. 99.
December 16, 1895.

This was an action at law, brought June 9, 1890, in the circuit court of the United States for the district of Indiana, by the Interior Construction & Improvement Company against John C. Gibney and Harvey Bartley, copartners under the name of J. C. Gibney & Co., and James B. McElwaine and James B. Wheeler, upon a bond, by which 'J. C. Gibney & Co., as principals, and J. B. McElwaine and J. B. Wheeler, as sureties, are holden and firmly bound,'

Page 218

jointly and severally, to the plaintiff, in the sum of $20,000, for the performance of a contract made by 'said J. C. Gibney & Co.' with the plaintiff.

The complaint alleged that the plaintiff was incorporated under the laws of the state of New Jersey, and was a citizen thereof; and that all the defendants were citizens and residents of the state of Indiana.

On June 19, 1890, the defendants Gibney, McElwaine, and Wheeler, by their attorney, entered a general appearance. But Gibney never pleaded or answered, and the defendant Bartley never appeared or made any defense.

On September 19, 1891, McElwaine and Wheeler pleaded in abatement that, at the time of the bringing of this action, and ever since, Gibney and Bartley were citizens of the state of Pennsylvania, and not citizens or residents of the state of Indiana, and that, therefore, the court had no jurisdiction of the case.

The plaintiff demurred to this plea, as not containing facts sufficient to constitute a cause for the abatement of the action. The plaintiff declining to plead further, but electing to stand upon its demurrer to the plea, the court adjudged that the plaintiff take nothing by its action, and that the defendants recover costs.

The plaintiff thereupon presented a petition for the allowance of a writ of error 'for the review of the judgment heretofore rendered therein in favor of the defendants and against the plaintiff, therein holding and deciding that this court has no jurisdiction of said action,' and assigned, as errors, that the circuit court erred (1) in overruling the plaintiff's demurrer to the plea in abatement; (2) in sustaining the plea in abatement, and holding that the court had no jurisdiction of the cause; (3) in entering judgment in favor of the defendants and against the plaintiff on the plea in abatement, and dismissing and quashing the proceedings. The writ of error was thereupon...

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97 practice notes
  • Greene v. United States, 1,601.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 3, 1907
    ...may prove controlling. Hicks v. United States, 150 U.S. 442, 452, 14 Sup.Ct. 144, 37 L.Ed. 1137.' And again, in Allison v. United States, 160 U.S. 217, 16 Sup.Ct. 252, 258, 40 L.Ed. 395: 'Where the charge of the trial judge takes the form of animated argument, the liability is great that th......
  • McPhee & McGinnity Co. v. Union Pac. R. Co., 2,644
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 27, 1907
    ...905, 36 L.Ed. 829; Martin v. B. & O.R.R. Co., 151 U.S. 673, 678, 14 Sup.Ct. 533, 38 L.Ed. 311; Interior Cons. & Imp. Co. v. Gibney, 160 U.S. 217, 219, 16 Sup.Ct. 272, 40 L.Ed. 401; Toland v. Sprague, 12 Pet. 300, 330, 9 L.Ed. 1093; Ex parte Schollenberger, 96 U.S. 369, 378, 24 L.Ed. 853; Ch......
  • Freeman v. Bee Machine Co, No. 707
    • United States
    • United States Supreme Court
    • June 1, 1943
    ...Commercial Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 99, 73 L.Ed. 252; Interior Construction Co. v. Gibney, 160 U.S. 217, 16 S.Ct. 272, 40 L.Ed. 401. As we have noted, the District Court did not place its ruling on the grounds of venue. Nor is there any indication ......
  • McEldowney v. Card, 1,581.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • September 21, 1911
    ...and pleading to the merits. St. Louis Ry. Co. v. McBride, 141 U.S. 127, 131, 11 Sup.Ct. 982, 35 L.Ed. 659; Interior Const. Co. v. Gibney, 160 U.S. 217, 219, 16 Sup.Ct. 272, 40 L.Ed. 401; In re Keasbey & Mattison Co., 160 U.S. 221, 229, 16 Sup.Ct. 273, 40 L.Ed. 402; In re Moore, 209 U.S. 490......
  • Request a trial to view additional results
97 cases
  • Greene v. United States, 1,601.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 3, 1907
    ...may prove controlling. Hicks v. United States, 150 U.S. 442, 452, 14 Sup.Ct. 144, 37 L.Ed. 1137.' And again, in Allison v. United States, 160 U.S. 217, 16 Sup.Ct. 252, 258, 40 L.Ed. 395: 'Where the charge of the trial judge takes the form of animated argument, the liability is great that th......
  • McPhee & McGinnity Co. v. Union Pac. R. Co., 2,644
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 27, 1907
    ...905, 36 L.Ed. 829; Martin v. B. & O.R.R. Co., 151 U.S. 673, 678, 14 Sup.Ct. 533, 38 L.Ed. 311; Interior Cons. & Imp. Co. v. Gibney, 160 U.S. 217, 219, 16 Sup.Ct. 272, 40 L.Ed. 401; Toland v. Sprague, 12 Pet. 300, 330, 9 L.Ed. 1093; Ex parte Schollenberger, 96 U.S. 369, 378, 24 L.Ed. 853; Ch......
  • Freeman v. Bee Machine Co, No. 707
    • United States
    • United States Supreme Court
    • June 1, 1943
    ...Commercial Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 179, 49 S.Ct. 98, 99, 73 L.Ed. 252; Interior Construction Co. v. Gibney, 160 U.S. 217, 16 S.Ct. 272, 40 L.Ed. 401. As we have noted, the District Court did not place its ruling on the grounds of venue. Nor is there any indication ......
  • McEldowney v. Card, 1,581.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • September 21, 1911
    ...and pleading to the merits. St. Louis Ry. Co. v. McBride, 141 U.S. 127, 131, 11 Sup.Ct. 982, 35 L.Ed. 659; Interior Const. Co. v. Gibney, 160 U.S. 217, 219, 16 Sup.Ct. 272, 40 L.Ed. 401; In re Keasbey & Mattison Co., 160 U.S. 221, 229, 16 Sup.Ct. 273, 40 L.Ed. 402; In re Moore, 209 U.S. 490......
  • Request a trial to view additional results

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