Peale v. Marian Coal Co.
| Decision Date | 25 September 1909 |
| Docket Number | 1909.,May term,55 |
| Citation | 172 F. 639 |
| Parties | PEALE v. MARIAN COAL CO. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Frank E. Donnelly, for demurrer.
John P Kelly, opposed.
The first ground of demurrer is that the court has no jurisdiction; neither party being a resident of the district. The plaintiff is a citizen and resident of New York, and the defendant is a citizen of Delaware, where it was incorporated, and where it is consequently domiciled. The fact that it has its principal place of business here does not make it a resident of the district. Shaw v. Quincy Mining Co., 145 U.S. 444, 12 Sup.Ct. 935, 36 L.Ed. 768; Southern Pacific Co. v. Denton, 146 U.S. 202, 13 Sup.Ct. 448 36 L.Ed. 942; In re Keasbey, 160 U.S 221, 16 Sup.Ct. 273, 40 L.Ed. 402. Had the defendants therefore, stood squarely upon this objection, they would have undoubtedly been entitled to a dismissal.
But the right to be sued in a particular district is a privilege which may be waived. And this is done by appearing and pleading to the merits. Interior Construction Co. v. Gibney, 160 U.S. 217, 16 Sup.Ct. 272, 40 L.Ed. 401. It was waived of necessity, therefore, in the present instance by the third ground of demurrer set up, which was that, as appeared by the bill, the plaintiff was not entitled to the relief prayed for. This called for a judgment on the merits, which the court could not undertake to render, except as it first assumed jurisdiction of the controversy. St. Louis Railroad v. McBride, 141 U.S. 127, 11 Sup.C. 982, 35 L.Ed. 659; Western Loan Company v. Butte Mining Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101. If sustained, it amounted to a decision that the plaintiff had no case on his own showing, and the defendants could not call on the court for this, and in the same breath insist that the bill should be dismissed because the parties were not rightly before it. The court could not, in other words, decide that the case was bad, if, as contended, it had no right to decide anything, except to dismiss it.
As to the further ground of demurrer, that the plaintiff had a complete remedy at law by action for damages, it is sufficient to say that the bill seeks the specific performance of the defendants' agreement to deliver coal from their washery at the Holden culm dump, which they undertook to do in return for the money advanced by the plaintiff to make the necessary developments....
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...the intervention of a court of equity is certainly proper. Bank of Kentucky v. Schuylkill Bank, 1 Pars.Eq.Cas. (Pa.) 180; Peale v. Marian Coal Co. (C.C.) 172 F. 639. addition to these considerations, it appears from the bill, and the contract between the parties establishes it, that one of ......
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