Southern Exp. Co. v. Todd

• Citation: 56 F. 104
• Decision Date: 15 May 1893
• Docket Number: 197.
• Parties: SOUTHERN EXP. CO. v. TODD et al.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 104

SOUTHERN EXP. CO. v. TODD et al.

No. 197.

United States Court of Appeals, Eighth Circuit.

May 15, 1893

U. M Rose, W. E. Hemingway, and G. B. Rose, for plaintiff in error.

George E. Dodge and B. S. Johnson, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge.

The Southern Express Company brings this writ of error to reverse a judgment against it in favor of Charles S. Todd and William T. Hudgins, the defendants in error, who were the plaintiffs below, rendered by the circuit court of the United States for the eastern district of Arkansas. The plaintiffs alleged in their complaint that they were citizens and residents of the state of Texas; that the defendant was a corporation organized under the laws of Georgia, doing business in Arkansas; and that, at its request, they had rendered certain services, as attorneys, which were worth $3,000. The defendant answered that it never employed the plaintiffs, and that their services were not worth $3,000. The case was tried by a jury, who found a verdict in favor of the plaintiffs. Judgment was entered on the verdict, and on August 11, 1892 the defendant made a motion in arrest of judgment on the ground that the court had no jurisdiction of the action. The court below overruled this motion, and this ruling is the first error assigned.

The act of congress of March 3, 1887, and the act of August 13, 1888 for its correction, (24 Stat. p. 552, c. 373; 25 Stat. p.

434, c. 866,) provide that the circuit courts shall have original cognizance of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, in which there shall be a controversy between citizens of different states, and that 'no person shall be arrested in one district, for trial in another, in any civil action before a circuit or district court, and no civil suit shall be brought before either of said courts, against any person, by any original process or proceeding in any other district than that of which 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.' In the case at bar the jurisdiction of the circuit court was founded only on the fact that the action was between citizens of different states. The plaintiffs were citizens and residents of Texas. The defendant was a citizen and resident of Georgia. And the objection urged by counsel for the defendant is that this action could be brought against this Georgia corporation only in the district of the residence of the plaintiffs, in Texas, or in that of the residence of the defendant, in Georgia, and that, therefore, the circuit court for the eastern district of Arkansas was without jurisdiction. In answer to the suggestion that this objection comes too late after judgment against their client, they invoke the rule of the federal courts that if the want of jurisdiction is discovered at any time before the final disposition of the action it must be dismissed.

The vice of this contention lies in the fact that it confounds the jurisdiction of the court with the personal privilege of the party. When an action is brought in a circuit court, and it appears from the complaint or the record that there is a controversy between citizens of different states, and that the amount in dispute is sufficient under the acts of congress, that court has jurisdiction, although it may not be brought in the district of the residence of either the plaintiff or the defendant. The essential jurisdictional facts in such a case are the diverse citizenship, and the amount in controversy. These facts must, no doubt, appear upon the record, and where they do not appear the federal courts may take notice of their absence, and dismiss the case at any stage of the proceedings. The cases to which we are referred by defendant's counsel as authority for the position that the defendant is not too late with its objection here are cases of this character,--where the records failed to disclose the diverse citizenship of the parties, or the proper amount in controversy. Such cases are Railway Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510; King Bridge. Co. v. Otoe Co., 120 U.S. 225, 7 S.Ct. 552; Anderson v. Watt, 138 U.S. 694, 11 S.Ct. 449; Graves v. Corbin, 132 U.S. 571, 10 S.Ct. 196; Morris v. Gilmer, 129 U.S. 315, 9 S.Ct. 289; Metcalf v. Watertown, 128 U.S. 586, 9 S.Ct. 173; Williams v. Nottawa Tp., 104 U.S. 209; Farmington v. Pillsbury, 114 U.S. 138, 5 S.Ct. 807; Little v. Giles, 118 U.S. 596, 7 S.Ct. 32; Crehore v. Railway Co., 131 U.S. 244, 9 S.Ct. 692; Stevens v. Nichols, 130 U.S. 230, 9 S.Ct. 518.

No case has been cited, however, where any federal court has dismissed an action on the sole ground that it was brought in the wrong district, after the defendant had appeared generally, or pleaded to the merits, without first objecting that the action was not brought in the district of the residence of either of the parties to the action. This objection relates, not to the jurisdiction of the court, but to the personal privilege or exemption of the defendant. Where he makes the objection seasonably, before appearing generally, or pleading to the merits of the action, his privilege is inviolate, and the action against him cannot be maintained in that court. He cannot be compelled to submit to the jurisdiction of the circuit court of a district in which neither of the parties to the action resides. Shaw v. Mining Co., 145 U.S. 444, 12 S.Ct. 935; Southern Pac. Co. v. Denton, 13 S.Ct. 44; Railway Co. v. Pinkney, (decided by the supreme court May 1, 1893,) 13 S.Ct. 859.

On the other hand, since this objection does not go to the jurisdiction of the court, but is a mere personal privilege or exemption, the defendant has the option of waiving it, and of consenting to be sued, and to try his case, in the wrong district. A general appearance, or a plea to the merits, without first claiming his privilege, is a complete waiver of it. It is, in effect, a consent to try his case in the wrong district; and when he has thus waived his privilege, and tried his case, it is too late for him to object for the first time that the action was not tried in the proper court. He cannot be permitted to experiment in that way with the courts until he obtains from some court a favorable decision. Nor is it at all material whether the fact that the action is brought in the wrong district appears from the face of the complaint, or from the plea of the defendant. No reason occurs to us why his answer to the merits--his waiver of his privilege--should not have as much force when his privilege is tendered to him on the face of the complaint as when he is compelled to set forth by plea or answer the facts upon which it is based.

The eleventh section of the judiciary act of 1789 (1 Stat. 79) provided that no person should be arrested in one district for trial in another, in any civil action before a circuit or district court, and that no civil suit should be brought before either of said courts, against an inhabitant of the United States, by any original process, in any other district than that whereof he was an inhabitant, or in which he should be found, at the time of serving the writ. In Gracie v. Palmer, (decided in 1823,) 8 Wheat. 699, an action was brought in the circuit court of the district of Pennsylvania. The plaintiffs were described to be aliens, and subjects of the king of Great Britain, and the defendants, Gracie and others, to be citizens of the state of New York; and it did not appear that the defendants were inhabitants of, or found in, the district of Pennsylvania, at the time of serving the writ. Daniel Webster moved to dismiss the writ of error for want of jurisdiction.

Chief Justice Marshall delivered the opinion of the supreme court and said:

'That the uniform construction, under the clause of the act referred to, had been that it was not necessary to aver on the record that the defendant was an inhabitant of the district, or found therein. That it was sufficient if the court appeared to have jurisdiction by the citizenship or alienage of the parties. The exemption from arrest in a district in which the defendant was not an inhabitant, or in which he was not found, at the time of serving the process, was the privilege of the defendant, which he might waive by a voluntary appearance. That if process was returned by the marshal, as served upon him within the district, it was sufficient, and that where the defendant voluntarily appeared in the court below, without taking the exception, it was an admission of the service, and a waiver of any further inquiry into the

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