Miller v. Eastern Oregon Gold Mining Co.

• Decision Date: 02 March 1891
• Citation: 45 F. 345
• Parties: MILLER v. EASTERN OREGON GOLD MIN. CO.
• Court: U.S. District Court — District of Oregon

45 F. 345

MILLER v. EASTERN OREGON GOLD MIN. CO.

United States Circuit Court, D. Oregon.

March 2, 1891

At Law. Motion for new trial.

1. MOTION FOR NEW TRIAL.

Grounds of, discussed, and held not sufficient.

2. FOREIGN CORPORATIONS.

A foreign corporation may be an 'inhabitant' of a district or country other than that of which it is a citizen or subject, or where it was organized, within the meaning and purpose of the term, as used in section 1 of the judiciary act of 1888.

Syllabus by the court

Grounds of, discussed, and held not sufficient.

A foreign corporation may be an 'inhabitant' of a district or country other than that of which it is a citizen or subject, or where it was organized, within the meaning and purpose of the term, as used in section 1 of the judiciary act of 1888.

John Gearin, for plaintiff.

Arthur C. Emmons and Frank V. Drake, for defendant.

DEADY J.

This action was commenced on May 7, 1889, to recover damages for the wrongful refusal of the defendant to transfer 6,000 shares of its stock on its books, whereby the plaintiff lost the sale thereof, and was damaged $24,000.

On the same day a summons was issued against the defendant, which was personally served at once on '. . . Bates, president, and J. Gilbert Bowick, director,' of the defendant. On May 17th a motion was made to set aside the service because the defendant 'is a foreign corporation,' and the alleged cause of action 'arose without a jurisdiction of the court,' and it does not appear that at the time said cause of action arose, or since, the defendant 'either carried on business or had property within the jurisdiction of this court.'

On May 20th the plaintiff filed his affidavit, in which it is stated that the defendant was organized in 1888 in London, England, and is owner of the Monumental mine and mill property, situate in Grant county, Or., and of no other property anywhere; that the defendant was organized to purchase and work said property, and was then engaged in so doing; that at the time of the service of the summons, as aforesaid, on Bates and Bowick, the former was president of the defendant, and the latter director thereof, and both were large stockholders therein, and were then in Oregon looking after the business of working and managing said mine.

On May 24th the motion to set aside the service of the summons was denied, and on the 25th of the same month the plaintiff filed an amended complaint, alleging therein, among other things, the facts aforesaid concerning the location and ownership of said mine, and also that the defendant is carrying on business in the state of Oregon, and 'is an inhabitant' thereof.

On May 30th a demurrer was filed to the amended complaint, and on June 19th the same was withdrawn, and the defendant had leave to file a plea in abatement, which was done on July 8th. The plea contained no denial of any allegation of fact in the complaint, but alleged that the defendant was an 'inhabitant' of London.

On July 12th a demurrer was filed to this plea, and on November 20th, after argument, the demurrer was sustained.

On December 4th an answer was filed, containing denials of sundry allegations in the complaint, and a defense, to the effect that the plaintiff's shares were originally issued to one Isaac Kaufman, from whom the defendant purchased the mine, on condition that they should not be transferred until the title to the mine was obtained from the United States, which was not yet done, and this fact the plaintiff well knew when he took the assignment of his stock from Kaufman, and therefore the defendant was justified in refusing to transfer the same on its books.

On January 3, 1890, the plaintiff replied to this defense, denying it in toto, and alleging that the only condition attending the sale was that the defendant should be put in possession of the mine, which was duly done.

Thereafter, on July 2d, the cause was tried with a jury, when there was a verdict for the plaintiff for $24,000, with interest thereon from February 29, 1889, on which judgment was given for the plaintiff, with costs.

A motion for a new trial has been argued and submitted.

On the argument two points were made in support of the motion: (1) That in setting the cause for trial the court did not give the defendant time to get Bowick and one William E. Parsons, the trustee of the defendant, from London and New York, respectively, whereby the subpoenaed late the evening before to appear and testify, but that, and also their testimony in support of the defendant's allegations as to the terms of the contract of purchase from Kaufman.

There has been plenty of time to obtain the affidavits of these persons as to what they know on this subject and would swear to. Nothing of the kind has been done, and therefore it does not appear that they are or were material witnesses for the defense. The counsel states what he 'expects to prove' by them, but, in the unexplained absence of the better evidence,-- the affidavits of Bowick and Parsons,-- this amounts to nothing. Nor does it satisfactorily appear that these persons might not have been here at the trial if they desired to be. They are both, in interest and effect, parties to the action, and were in the state not long before the trial. An affidavit of Kaufman's is produced, stating that he would testify in support of the defense; that he expected to be present at the trial, and was subpoenaed late the evening before to appear and testify, but that, being taken suddenly ill, he went the next morning, to save his life, to the Hot Springs in Idaho. But Kaufman is so thoroughly contradicted by the counter-affidavits on this point that he seems unworthy of credit.

And it appearing that the contract for the purchase of the mine was in writing, and is in the possession...