North Butte Mining Co. v. Tripp
| Decision Date | 03 June 1942 |
| Docket Number | No. 10006.,10006. |
| Parties | NORTH BUTTE MINING CO. v. TRIPP. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. A. Poore and James A. Poore, Jr., both of Butte, Mont., for appellant.
P. E. Geagan, of Butte, Mont., and Donald D. Harries and Elvero J. McMillan, of Duluth, Minn., for appellee.
Before MATHEWS, HANEY, and STEPHENS, Circuit Judges.
In the District Court of the United States for the District of Minnesota, a judgment (hereafter called the Minnesota judgment) was obtained by appellee, Chester D. Tripp, a citizen of Illinois, against appellant, North Butte Mining Company, a Minnesota corporation, for $14,525 with interest and costs. Thereafter an action on the Minnesota judgment was brought by appellee against appellant in the District Court of the United States for the District of Montana (hereafter called the Montana court). A summons was issued by the Montana court and was placed in the hands of the marshal for service. The marshal made return thereof as follows: "I hereby certify and return, that on the 27th day of March, 1941, I received the within summons and executed the same in the following manner: I served the North Butte Mining Company, a corporation, by exhibiting the original summons to Paul Gow, president of said corporation and an authorized person to accept process for said corporation, and by also delivering and leaving with him a true and correct copy of the summons, with a copy of the complaint attached thereto, at Butte, Montana, on the 27th day of March, 1941."
Appellant, appearing specially, moved to quash the service of summons and to dismiss the Montana action on the ground that neither appellant nor appellee was an inhabitant or resident of the District of Montana. The Montana court denied appellant's motion and entered a default judgment (hereafter called the Montana judgment) for the full amount of the Minnesota judgment, with interest and costs. From the Montana judgment this appeal is prosecuted.
Section 51 of the Judicial Code, 28 U.S. C.A. § 112, provides that, with inapplicable exceptions, "no civil suit shall be brought in any district court 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 Montana action was a civil suit brought by original process, within the meaning of § 51. Jurisdiction was founded only on the fact that the action was between citizens of different States. Appellee was an inhabitant and resident of Illinois. Appellant, being a Minnesota corporation, was an inhabitant and resident of Minnesota. Neither appellant nor appellee was an inhabitant or resident of Montana. By its motion, therefore, appellant claimed the privilege accorded by § 51 — the privilege of being sued only in the district of the residence of either appellant or appellee.
Prior to the commencement of the Montana action, appellant complied with § 6651, Revised Codes of Montana, reading as follows: "All foreign corporations * * * shall, before doing business within this state, file in the office of the secretary of state, and in the office of the county clerk of the county wherein they intend to carry on business, * * * a certificate * * * certifying that the said corporation * * * has consented to be sued in the courts of this state, upon all causes of action arising against it in this state, and that service process may be made upon some person, a citizen of this state, whose name and place of residence shall be designated in such certificate, and such service, when so made upon such agent, shall be valid service on the corporation or company."
Appellee contends that, by filing the certificate required by § 6651, appellant, in effect, consented to be sued in the District of Montana and thus waived the privilege accorded by § 51 of the Judicial Code. This undoubtedly is true as to causes of action arising in Montana. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed....
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...through compliance with state law the scope of the consent is circumscribed by the terms of the statute. See North Butte Mining Co. v. Tripp, 9 Cir., 1942, 128 F.2d 588. And the statute should be construed with reference to its interpretation by the courts of the state in question. Sunshine......
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