Taylor v. Weir

Decision Date17 May 1909
Docket Number27.
PartiesTAYLOR v. WEIR.
CourtU.S. Court of Appeals — Third Circuit

S Morris Wales, for plaintiff in error.

John Lewis Evans, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and BRADFORD, District judge.

GRAY Circuit Judge.

The plaintiff in error, who was the plaintiff below, being the owner of certain furs which she valued at more than $2,000 delivered them in Philadelphia to an agent of the Adams Express Company, to be carried to a certain address in New York. The goods were lost or stolen while in the hands of the carrier, and were never delivered or in any way accounted for. She accordingly commenced suit in the court of common pleas of Philadelphia county, against 'Adams Express Company,' by serving the writ of summons upon the agent in charge of the business of said company in Philadelphia. After filing the statement of claim and the rule to plead thereon, defendant's counsel entered a restricted appearance for the purpose of moving a rule on plaintiff to show cause why the writ should not be quashed. This motion was accompanied by an affidavit of a member of the board of managers of the Adams Express Company, stating that Adams Express Company was a joint-stock association, consisting of seven or more persons, organized under the laws of the state of New York; that under and by virtue of said laws 'Adams Express Company' may be sued only in the name of its president or treasurer, and that said company is registered in the office of the Auditor General of the commonwealth of Pennsylvania, in compliance with the act of June 7, 1879 (P.L. 112), and its amendments, and is lawfully doing business in said state by virtue of said registration and that the name of the president of Adams Express Company is Levi C. Weir. This rule was granted by the court, and all proceedings stayed until the return thereof.

Afterwards, on motion of counsel for the plaintiff, and upon rule granted, the name of the defendant on the praecipe, writ, statement, and docket entries in the case was amended, so as to read, 'Levi C. Weir, as president of Adams Express Company, a joint-stock association,' and appearance was then entered by counsel for Levi C. Weir, as president of Adams Express Company, and thereupon, upon petition of said Weir, as president, etc., alleging that he was a citizen of the state of Ohio, and that the plaintiff was a citizen of the commonwealth of Pennsylvania, and that the amount in controversy was in excess of $2,000, etc., the record of the said cause was, upon appropriate proceedings had in accordance with the act of Congress in that behalf, ordered to be removed from the said court of common pleas of the commonwealth of Pennsylvania into the Circuit Court of the United States for the Eastern District of Pennsylvania. The cause having been pleaded to issue in said last-mentioned court, a trial by jury was duly proceeded with, and a verdict and judgment thereon for $159 was duly entered by the court. Motion was made for a new trial by counsel for the plaintiff, and among the reasons filed therefor was one suggesting that the court had no jurisdiction, and praying for a rule on the defendant to show cause why the plaintiff should not have leave to amend the record, by striking out the words 'Levi C. Weir, as president,' and why the verdict should not be set aside, the case dismissed, and the record remanded to the said court of common pleas, for want of jurisdiction.

The court denied the motion for a new trial, overruling the motion to amend the record, as prayed for; whereupon the plaintiff sued out his writ of error, which brings before us the whole record in the case below. Assignments of error cover exceptions to the charge of the court, upon which questions relating to the merits of the case have been argued at length before us, and the fifth assignment is for error in refusing to grant the motion of plaintiff's attorney at the trial, to remand the case for want of jurisdiction.

In the view taken by this court, it will only be necessary to consider the question of jurisdiction. This question is presented on the face of the record before us. It is a question that can be dealt with at any stage of the cause, by this court as well as by the court below, and with or without suggestion or motion from counsel on either side. Circuit Courts of the United States are courts of limited jurisdiction, and the jurisdictional facts must clearly appear upon the face of the record, the presumption being that a cause is without its jurisdiction, unless the contrary affirmatively appears. In the present case, the only ground of jurisdiction is the diverse citizenship of the parties to the controversy involved in the suit. This jurisdictional fact must appear on the face of the record, and should be positively and unequivocally averred at the outset and in the pleadings of the party who invokes the jurisdiction, or it must appear affirmatively and with equal distinctness in other parts of the record. Ex parte Smith, 94 U.S. 455, 24 L.Ed. 165; Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057; Grace v. Am. Cent. Ins. Co., 109 U.S. 284, 3 Sup.Ct. 207, 27 L.Ed. 932.

The case before us was removed from the state court into the Circuit Court of the United States, upon the statement, not denied, that the plaintiff was a citizen of the commonwealth of Pennsylvania and resident therein, and that the defendant, Levi C. Weir, is a citizen of the state of Ohio. We have already referred to what the record discloses as to the suit being originally brought in the state court against 'Adams Express Company,' and the amendment to the writ and proceedings made on the motion of the plaintiff, by which Levi C. Weir, as president of the said company, was made defendant. It appears by the record, and is not denied, that the Adams Express Company, of which the defendant is president, is an unincorporated association, or stock company, and that under the laws of the state of New York (see Code Civ. Proc. Sec. 1919) an action may be maintained against the president or treasurer of such an association--

'to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action * * * against all the associates, by reason of their interest or ownership, or claim of ownership, therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership or other company of persons which has a president, or treasurer, is deemed an association within the meaning of this section. * * * In such an action, the officer against whom it is brought, cannot be arrested, and judgment against him does not authorize an execution to be issued against his property, or his person, nor does the docketing thereof bind his real property or chattels real. Where such a judgment is for a sum of money, an execution issued thereupon must require the sheriff to satisfy the same out of any personal property belonging to the association, or owned, jointly or in common, by all the members thereof, omitting any direction respecting real property.'

And it is further provided that these proceedings do not prevent an action from being brought against all the members of such an association. It is perfectly clear that the Adams Express Company, not being a corporation, but an...

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  • Ex parte Edelstein
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 4, 1929
    ... ... Trustees of Ohio State University, 195 U. S. 207, 25 S. Ct. 24, 49 L. Ed. 160). See, also, Taylor v. Weir, 171 F. 636 C. C. A. 3; Spencer v. Patey, 243 F. 535 C. C. A. 2; Wise v. Brotherhood of Locomotive Firemen and Enginemen, 252 F. 961, 965 C ... ...
  • Mason v. American Express Company
    • United States
    • U.S. District Court — Southern District of New York
    • December 12, 1963
    ...the complainant is a joint-stock company is not equivalent to the statement that it is a corporation" (165 F. at 154). In Taylor v. Weir, 171 F. 636 (3d Cir. 1909) plaintiff sued Adams Express Company in a Pennsylvania state court. Defendant objected that it could be sued only in the name o......
  • Baskins v. United Mine Workers of America
    • United States
    • Arkansas Supreme Court
    • November 7, 1921
    ...a specific statute authorizing suit against it, be sued in its association name for the torts of its membership. 180 F. 896; 129 U.S. 426; 171 F. 636; Id. 695; 83 Id. 912; 2 L. R. A. (N. S.) 788; 102 N.W. 725; 22 Enc. P. &. P. § 242; 54 N.W. 188; 79 S.W. 139; 74 Mich. 269; 20 A. 942; 31 S.W......
  • Brocki v. American Express Company
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 16, 1960
    ...L.Ed. 842; Thomas v. Board of Trustees, 195 U.S. 207, 25 S.Ct. 24, 49 L.Ed. 160; Fred Macey Co. v. Macey, 6 Cir., 135 F. 725; Taylor v. Weir, 3 Cir., 171 F. 636; Rountree v. Adams Express Co., 8 Cir., 165 F. Appellant cites the provision of Article X, § 4 of the New York Constitution: "The ......
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