Scott v. Hoover

• Decision Date: 15 January 1900
• Docket Number: 872.
• Citation: 99 F. 247
• Court: U.S. District Court — Southern District of California
• Parties: SCOTT et al. v. HOOVER.

99 F. 247

SCOTT et al. v. HOOVER.

No. 872.

United States Circuit Court, S.D. California.

January 15, 1900

Dillion & Dunning, for complainants.

Hunsaker & Freeman, for defendant.

WELLBORN District Judge.

A demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action was interposed March 24, 1899. Thereafter, May 29, 1899 defendant filed an answer containing various pleas to the merits, and also the following:

'The plaintiffs ought not to be permitted to maintain this action in this court, for that the defendant was not at the time of the commencement of said action, is not now, and never has been, a resident and inhabitant of the Southern district of California, but that at all of said times the defendant was, and is now, a citizen and resident of the state of Colorado.'

Plaintiff now moves to strike out, and also demurs to, that part of the answer above quoted, and the present hearing is on said motion and demurrer.

The single question to be determined is whether or not the filing of the demurrer to the complaint waived the objection that the action was not brought in the proper district, i.e. the district of the defendant's residence. The general proposition that the federal statute, which provides that no civil suit shall be brought in a circuit court of the United States against any person in any other district than that whereof he is an inhabitant (1 Supp.Rev.St. (2d Ed.)p. 612) only confers a personal privilege on the defendant, which he may waive, is so well settled and familiar to the profession that it is unnecessary to cite authority in its support. Defendant, however, insists that according to the practice of the state courts in California (Code Civ. Proc. Cal. Secs. 430, 433), which section 914 of the Revised Statutes of the United States adopts as the practice of the federal courts in said state, the personal privilege above mentioned is matter of defense, which, when not appearing upon the face of the complaint, is available only through an answer, and therefore not waived by demurrer. The assumption that the above-mentioned sections of the Code of California furnish a suitable procedure for the assertion in the circuit court of the United States by a defendant of his privilege to be sued in the district of his residence is, in my opinion, erroneous, while the closet, and perhaps only, analogy to such procedure in said Code is found in its provisions (section 396 below quoted) relative to a change of the place of trial.

Section 20 of the practice act of 1851 of said state was as follows:

'Sec. 20. In all other cases, the action shall be tried in the county in which the defendants, or any one of them, may reside at the commencement of the action. * * * '

Section 21 of said practice act was as follows:

'Sec. 21. The court may, on motion, change the place of trial in the following cases: First. When the county designated in the complaint is not the proper county. * * * '

While said practice act was in force the supreme court of the state held:

'If a defendant, sued in a county where he does not reside, demurs to the complaint, and the demurrer is sustained, and he then demurs to an amended complaint before giving notice of a motion for a change of venue, he waives the right to have the case tried in the county where he resides. ' Jones v. Frost, 28 Cal. 246.

The provisions of the section of the practice act first above quoted, to wit, section 20, are still in force, being re-enacted in section 395, Code Civ. Proc. Cal.; and the doctrine of the case last cited (Jones v. Frost) is now substantially embodied in section 396 of the same Code, which is as follows:

'Sec. 396. If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county.'

With reference to that section the supreme court of the state has said:

'Section 396 of the Code of Civil Procedure provides, in effect, that a defendant may be held to have waived his right to a change of the place of trial on the ground that the action has not been commenced in the proper county, unless at the time he first appears, either by answer or demurrer, he files an affidavit of merits, and demands in writing a transfer to the proper county. ' Cook v. Pendergast, 61 Cal. 78.

From the foregoing citations it appears that under the state practice in California a right similar in character to the personal privilege claimed in the case at bar is asserted, not by an answer, but by a written demand for a change of venue, and, if demand is not so made before the filing of a demurrer, the right is waived. If, therefore, pursuant to section 914 of the Revised Statutes of the United States, the practice of the federal courts in respect to the matter now under consideration is to be conformed, 'as near as may be,' to that of the state courts (Railway Co. v. Pinkney, 149 U.S. 194, 13 Sup.Ct. 859, 37 L.Ed. 699), the objection that suit has been brought in a district other than the one of defendant's residence should be raised by motion to dismiss, or in some other suitable way, before demurrer or other general appearance by the defendant, and, if not so raised, should be deemed waived.

The case of Roberts v. Lewis, 144 U.S. 653, 12 Sup.Ct. 781, 36 L.Ed. 579, relied on in this connection by defendant, does not, in my opinion, conflict with the conclusion just announced. The second paragraph of the syllabus in that case is as follows:

'(2) Since the act of June 1, 1872, all defenses are open to a defendant in the United States circuit court, under any form of plea, answer, or demurrer, which would have been open to him under like pleading in the courts of the state within which the circuit court is held.'

We have just seen, however, that, in the state practice, where a defendant, sued in a county other than that whereof he is a resident, desires to insist upon his privilege to have the suit tried in the county of his residence, he must do so by special motion, before answer or demurrer, and that answer or demurrer without such special motion is a waiver of the privilege.

Again, in Roberts v. Lewis, supra, the court says:

'The necessary consequence is that the allegation of the citizenship of the parties, being material allegation properly made in the petition, was put in issue by the answer, and, like other affirmative and material allegations made by the plaintiff and denied by the defendant, must be proved by the plaintiff.'

The allegation of the place of defendant's residence, unlike that of citizenship, is not a material allegation. Express Co. v. Todd, 5 C.C.A. 432, 56 F. 104. I quote from that case as follows:

'The eleventh section of the judiciary act of 1789 (1 Stat. 79) provided that no person should be arrested in one district for trial

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