Midland Contracting Co. v. Toledo Foundry & Machine Co.

• Decision Date: 05 February 1907
• Docket Number: 1,292.
• Parties: MIDLAND CONTRACTING CO. v. TOLEDO FOUNDRY & MACHINE CO.
• Court: U.S. Court of Appeals — Seventh Circuit

154 F. 797

MIDLAND CONTRACTING CO. v. TOLEDO FOUNDRY & MACHINE CO.

No. 1,292.

United States Court of Appeals, Seventh Circuit.

February 5, 1907

Rehearing Denied May 17, 1907.

This writ of error is prosecuted from a judgment recovered against the Midland Contracting Company, defendant below, upon alleged default, in a replevin suit, brought by defendant in error, to recover a steam dredge and damages for alleged unlawful detention. The suit was commenced in the Circuit Court for the Eastern District of Illinois, by summons and writ of replevin, with service returned as made upon the superintendent of the defendant corporation (plaintiff in error) at Vandalia, Ill., December 1, 1905. The declaration avers, in substance, that the plaintiff therein (defendant in error) is an Ohio corporation, citizen, and resident; that the defendant therein is a Colorado corporation, having its principal place of business at St. Louis, Mo.; and that the defendant on November 20, 1905, unjustly and unlawfully detained a steam dredge, the property of the plaintiff.

On December 2d the plaintiff in error delivered to the marshal an indemnifying bond for retention of the dredge. On March 13, 1906, a rule was entered upon it to plead to the declaration by March 15th. On March 15th an affidavit of the attorney on its behalf was filed in court, then in session averring a good and meritorious defense, with reasons for an extension of time to prepare and plead, praying such extension and continuance to the May term. Both motions were denied by the court. On March 16th the record states appearance of both parties, and leave 'given the defendant to plead to the plaintiff's declaration herein instanter;' that 'its plea to the jurisdiction' was thereupon filed; and that demurrer to such plea was entered. The plea states the incorporation of the parties in Ohio and Colorado, respectively, and that neither resides in the district of the venue.

On March 19th upon consent of parties, the demurrer to the plea was treated 'as a motion to strike said plea from the files,' and the court sustained such motion upon the ground that 'the defendant had hitherto waived its rights under said plea to the jurisdiction of the court,' through its several general appearances. No further motion appearing on behalf of the plaintiff in error, the judgment order was entered of which review is sought. It recites the failure of the defendant therein 'to plead, answer, or demur'; that 'having made default, and the court having heard the evidence submitted by the plaintiff, finds the issues for the plaintiff,' and thereupon adjudges the dredge to be the property of the plaintiff below, and that the damages for the wrongful detention are $1,100. It awards recovery of possession and damages accordingly. Error is assigned for rejecting the plea in abatement and upholding jurisdiction of the parties, and for various alleged errors in practice.

D. E Keefe, for appellant.

W. J. Wuerfel and Howard A. Swallow, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

SEAMAN Circuit Judge (after stating the facts).

The contention that the trial court erred in upholding jurisdiction, when it appeared that both parties to the suit were nonresidents of the district, is untenable, in view of the general appearance of the defendant below, in open court, on March 15th, with an affidavit of meritorious defense and of need for further time to prepare for trial, and an application thereupon for extension of time to plead and for continuance of the cause. This appearance was without qualification, and the plea in abatement was not filed until the following day, when leave was granted by the court to plead to the declaration. As the rule is well settled that the provision for suits to be brought in the district of the residence of one or the other party 'does not touch the general jurisdiction of the court over such cause between such parties,' but 'is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election' (Interior Construction Co. v. Gibney, 160 U.S. 217, 219, 220, 16 Sup.Ct. 272, 40 L.Ed. 401, and authorities cited), the appearance and applications referred to waived the objection subsequently interposed, and the plea was rightly overruled.

The plaintiff in error appears to have rested on the jurisdictional plea, making no application for leave to plead to the merits or for other relief from the default thereupon entered, and the only remaining questions open to consideration are, whether the record authorizes the judgment as entered. Error is assigned of two classes: (1) Want of timely service or sufficient declaration to...