Sherck v. Hagan

• Decision Date: 10 November 1955
• Docket Number: Civ. No. 3095.
• Parties: Philip E. SHERCK and Edyth M. Sherck, Plaintiffs, v. H. S. HAGAN, Defendant.
• Court: U.S. District Court — District of South Dakota

135 F. Supp. 293

Philip E. SHERCK and Edyth M. Sherck, Plaintiffs, v. H. S. HAGAN, Defendant.

Civ. No. 3095.

United States District Court D. North Dakota, Southwestern Division.

November 10, 1955.

Richard P. Rausch, of Rausch and Chapman, Bismarck, N. D., for plaintiffs.

J. F. X. Conmy, of Hyland and Conmy, Bismarck, N. D., appeared specially for defendant.

REGISTER, District Judge.

This is an action arising out of an automobile accident which occurred on August 15, 1952, in the city of Chicago, Illinois. The plaintiffs, who were then and presumably are now residents of the state of Michigan, allege in their complaint that defendant is a citizen of Illinois. Jurisdiction of the Federal Court is based on diversity of citizenship.

The action was brought in the United States District Court for the Northern District of Illinois. Service on the defendant was pursuant to the provisions of the Illinois Non-Resident Motor Vehicle Act, through the Illinois Secretary of State. Thereafter defendant appeared specially through counsel, and made a motion in said Court to dismiss the action upon the ground that neither the plaintiffs nor the defendant was a resident or citizen of the state of Illinois, or of the District within and for which said Court sits, nor were they at the time of the filing of this suit, counsel representing that the defendant was then a resident of Mandan, North Dakota, and a citizen of the state of North Dakota. The motion was granted, and Order of Dismissal duly entered. Thereafter, plaintiffs made a motion before said Court for an order vacating the Order of Dismissal, and for transfer of said action to the Southwestern Division of the United States District Court of North Dakota.

Notice of such motion, according to the records, was given to the defendant by the mailing of a copy of such Notice, and of the said Motion, to the defendant at his last known address in Mandan, North Dakota, and at the last known address of the defendant prior to the North Dakota address (Chicago, Illinois), and to the Chicago attorney who had appeared specially for the defendant as aforesaid.

The Illinois Court, by Order dated March 8, 1955, vacated such previous order of dismissal and ordered that the action be transferred to the Southwestern Division of the United States District Court of North Dakota.

Motion for dismissal of said action in this Court was filed on behalf of the defendant by J. F. X. Conmy.

Several specific grounds are stated upon which such motion to dismiss is based, all of which will not be restated in this Memorandum.

It appears to the satisfaction of this Court that the Illinois Court did have original jurisdiction on the basis of diversity of citizenship and the fact that the amount in controversy exceeds $3,000. The requirements of the Illinois Non-Resident Motor Vehicle Act, as to service, were complied with. That service under similar Acts on nonresidents constitutes valid and effective service has been established by the overwhelming weight of authority.

However, it appears that the actual question decisive of the motion is involved in the following specific grounds contained therein, and ably argued by counsel:

"2. The case was dismissed in the District of Illinois and that particular proceeding was thereby terminated, even though said dismissal may have been without prejudice;

"3. The case was never properly reinstituted and could not properly be reinstated;

"4. The case was not pending, having been dismissed in Illinois, and was not reinstituted and, therefore, could not properly be transferred to the District of North Dakota;

"5. That no Notice of Application to Reinstate or Notice of Application to Transfer to another District was ever served upon the defendant or upon anyone appearing for him, other than those making a special appearance to challenge the jurisdiction and the venue."

The court, in the case of Assman v. Fleming, 8 Cir., 159 F.2d 332, 336, speaking through Chief Justice Gardner, said:

"Courts under proper circumstances have the power to open, correct, modify or vacate their own

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