Meyer v. Herrera

• Citation: 41 F. 65
• Parties: MEYER et al. v. HERRERA.
• Decision Date: 31 December 1889
• Court: U.S. District Court — Western District of Texas

41 F. 65

MEYER et al. v. HERRERA.

United States Circuit Court, W.D. Texas, San Antonio Division.

December 31, 1889

Tarleton & Keller, for plaintiffs.

Oscar Bergstrom, for defendant.

MAXEY J.

This is a suit instituted by the plaintiffs, who are citizens of Texas and residents of this district, against the defendant a resident and citizen of the republic of Mexico, to recover damages in excess of $2,000, for breach of contract. A demurrer is interposed to the petition, on the ground that the court has no jurisdiction over the person of the defendant.

The preliminary question, that the objection should be raised by plea in abatement, will be first disposed of. As pertinent to that issue, the petition alleges:

'Said Albert Meyer is a resident citizen of the county of Bexar and the said Charles W. Barnard is a resident citizen of the county of Uvalde, and state of Texas, and both within the jurisdiction of this court; and the said Julian F Herrera is a resident and citizen of the republic of Mexico, but at present, of his own volition, and voluntarily, within the territorial jurisdiction of this court, in the said county of Bexar.'

When the necessary facts appear upon the face of the petition, as in this case, the defect of jurisdiction, if any existing, may, in the absence of a general appearance, be reached by demurrer interposed specially for that purpose. Halstead v. Manning, 34 F. 565. And so it is held by the supreme court that--

'The case is not one where a plea in abatement was required, to raise the question of citizenship. Here the citizenship of the parties is averred in the bill of complaint, and the consequent defect in the jurisdiction of the court is apparent; and a defect of this character, thus disclosed, may be reached on demurrer, or taken advantage of without demurrer, on motion, at any stage of the proceedings. A plea in abatement is required only when the citizenship averred is such as to support the jurisdiction of the court, and the defendant desired to controvert the averment,' Coal. Co. v. Blatchford, 11 Wall. 177, 178.

Whether the defendant is suable, over his protest, in this district, depends upon the construction to be given the act of August 13, 1888.

The general jurisdiction of the circuit courts over suits of a civil nature at common law, involving amounts in excess of $2,000, where a citizen of a state is plaintiff and an alien is defendant, is not challenged. But the defendant appears, and says, in limine, that under the act of congress he cannot be sued in this district without his consent, and submits that issue to the determination of the court. It is thus evident there is no general appearance in the cause, no voluntary submission of the person to the jurisdiction of the court, but a denial, in the first instance, of the right to proceed with the cause on its merits.

If the suit is properly brought in this district, authority for it must be found in the first section of the act, which provides--

'That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid; * * * or a controversy between citizens of a state and foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid. * * * 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.' 25 St.at Large, 434.

The concluding part of the section, as quoted above, regulating the venue of suits, may be divided into two distinct clauses (1) Suits generally shall be brought 'in no other district than that whereof the defendant is an inhabitant;' (2) 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 defendant. Now, the right to...