Toulmin v. James Mfg. Co., No. 2235.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtKNIGHT
PartiesTOULMIN et al. v. JAMES MFG. CO.
Decision Date08 May 1939
Docket NumberNo. 2235.

27 F. Supp. 512

TOULMIN et al.
v.
JAMES MFG.
CO.

No. 2235.

District Court, W. D. New York.

May 8, 1939.


Karl A. McCormick, of Buffalo, N. Y., for plaintiffs.

James O. Moore, of Buffalo, N. Y., for defendant.

KNIGHT, District Judge.

The plaintiffs are residents of the State of Ohio. Defendant is a corporation organized under the laws of the State of Wisconsin, qualified to do business in New York State. Defendant owns and operates an office and plant in this district. This suit is brought to recover for services alleged to have been performed by the plaintiffs for defendant.

The defendant appears specially and moves to dismiss the complaint upon the ground that this court does not have jurisdiction over the subject matter of the suit or the parties thereto. The question raised as to the jurisdiction of this court over the subject matter of the suit seems to have been abandoned by the defendant. In this connection, however, it is to be said that the plaintiff contends that the raising of this particular question of jurisdiction of the subject matter constitutes a general appearance. It is not thought that it does. Rules of Civil Procedure, Rule 12(b), 28 U.S.C.A. following section 723c; American-Mexican Claims Bureau v. Morgenthau, D.C. 26 F.Supp. 904; Herzog v.

27 F. Supp. 513
Hubard, 68 App.D.C. 383, 98 F.2d 255; Armstrong v. Langmuir, 2 Cir., 6 F.2d 369

The other question for determination is whether, plaintiffs being non-residents of this district and the defendant corporation incorporated under the laws of the State of Wisconsin but authorized to do and doing business under the laws of the State of New York, the defendant is a resident of the State of New York within the meaning of Section 51 of the Judicial Code, as amended, 28 U.S.C.A. § 112.

The court has general jurisdiction of the suit, the amount involved being upwards of $3,000, and there being diversity of citizenship. Section 51(a), supra, so far as pertinent here, reads: "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." Article 13, section 210 et seq., of the General Corporation Law of the State of New York, Consol.Laws N.Y. c. 23, provides that a foreign corporation shall not do business in that state unless it shall have complied with certain provisions of the Act and shall designate the Secretary of State as the agent upon whom all process might be served. Upon the compliance a certificate of authority is issued by the Secretary of State. In the instant case presumably such certificate was filed, the certificate of authority issued and an agent (Art. 13, supra, sec. 213) designated for the service of process.

It is conceded that this court would not have jurisdiction if there were not such a statutory provision. It is the claim of the plaintiffs that the jurisdiction is a matter of personal privilege which is waived by compliance with the statute hereinbefore mentioned; that defendant was a resident of this district within the meaning of the law.

In Shaw v. Quincy Mining Co., 145 U. S. 444, 12 S.Ct. 935, 36 L.Ed. 768, suit was brought by a citizen of Massachusetts in the Southern District of New York against a corporation organized under the laws of the State of Michigan. The defendant company was described as having its usual place of business in New York. It was held, following In re Schollenberger, 96 U. S. 369, 24 L.Ed. 853, that "a corporation could not be considered a citizen or a resident of a state in which it had not been incorporated" 145 U.S. 444, 12 S.Ct. 938, and that the court did not have jurisdiction. McCormick Harvesting Mach. Co. v. Walthers, 134 U.S. 41, 10 S.Ct. 485, 31 L.Ed. 833; Southern Pacific Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942; In re Keasbey & Mattison Co., 160 U.S. 221, 16 S.Ct. 273, 40 L.Ed. 402; Western Loan & Savings Co. v. Butte & Boston Consol. Min. Co., 210 U.S. 368, 28 S.Ct. 720, 52 L.Ed....

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6 practice notes
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...F.Supp. 144; Hamilton Watch Co. v. George W. Borg Co., D.C.N.D.Ill.,1939, 27 F.Supp. 215; Toulmin v. James Mfg. Co., D.C.W.D.N.Y.,1939, 27 F.Supp. 512. Cf. Heine Chimney Co. v. Rust Engineering Co., 7 Cir.,1926, 12 F.2d 596. 17 Shainwald v. Davids, D.C.N.D.Cal.,1895, 69 F. 704; Patten v. Do......
  • D. W. Onan & Sons, Inc. v. Superior Court, 4966
    • United States
    • Supreme Court of Arizona
    • March 31, 1947
    ...of the subject matter, American-Mexican Claims Bureau, Inc., v. Morgenthau, D. C., 26 F.Supp. 904; Toulmin v. James Mfg. Co., D.C., 27 F.Supp. 512, nor by pleading it in the answer along with defenses to the merits and a counterclaim, Sadler v. Pennsylvania Ref. Co., D. C., W.D.S.C.1940, 33......
  • Vilter Mfg. Co. v. Rolaff, No. 11569.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 8, 1940
    ...American-Mexican Claims Bureau, Inc., v. Morgenthau, D.C., District of Columbia, 26 F.Supp. 904; Toulmin, et al. v. James Mfg. Co., D.C., 27 F.Supp. 512. We will proceed first to consider the question of jurisdiction. Defendant is a Wisconsin corporation, with its principal office in Milwau......
  • Sil-Flo Corp. v. Bowen, SIL-FLO
    • United States
    • Supreme Court of Arizona
    • May 13, 1965
    ...to decide a case on its merits whereas venue relates to the place where the suit may be heard, Toulmin v. James Mfg. Co. (D.C.N.Y., 1939) 27 F.Supp. 512, 515; New York, C. and St. L. R. Co. v. Matzinger, 136 Ohio St. 271, 25 N.E.2d 349; Floor v. Mitchell, 86 Utah 203, 41 P.2d 281; Arganbrig......
  • Request a trial to view additional results
6 cases
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...F.Supp. 144; Hamilton Watch Co. v. George W. Borg Co., D.C.N.D.Ill.,1939, 27 F.Supp. 215; Toulmin v. James Mfg. Co., D.C.W.D.N.Y.,1939, 27 F.Supp. 512. Cf. Heine Chimney Co. v. Rust Engineering Co., 7 Cir.,1926, 12 F.2d 596. 17 Shainwald v. Davids, D.C.N.D.Cal.,1895, 69 F. 704; Patten v. Do......
  • D. W. Onan & Sons, Inc. v. Superior Court, 4966
    • United States
    • Supreme Court of Arizona
    • March 31, 1947
    ...of the subject matter, American-Mexican Claims Bureau, Inc., v. Morgenthau, D. C., 26 F.Supp. 904; Toulmin v. James Mfg. Co., D.C., 27 F.Supp. 512, nor by pleading it in the answer along with defenses to the merits and a counterclaim, Sadler v. Pennsylvania Ref. Co., D. C., W.D.S.C.1940, 33......
  • Vilter Mfg. Co. v. Rolaff, No. 11569.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 8, 1940
    ...American-Mexican Claims Bureau, Inc., v. Morgenthau, D.C., District of Columbia, 26 F.Supp. 904; Toulmin, et al. v. James Mfg. Co., D.C., 27 F.Supp. 512. We will proceed first to consider the question of jurisdiction. Defendant is a Wisconsin corporation, with its principal office in Milwau......
  • Sil-Flo Corp. v. Bowen, SIL-FLO
    • United States
    • Supreme Court of Arizona
    • May 13, 1965
    ...to decide a case on its merits whereas venue relates to the place where the suit may be heard, Toulmin v. James Mfg. Co. (D.C.N.Y., 1939) 27 F.Supp. 512, 515; New York, C. and St. L. R. Co. v. Matzinger, 136 Ohio St. 271, 25 N.E.2d 349; Floor v. Mitchell, 86 Utah 203, 41 P.2d 281; Arganbrig......
  • Request a trial to view additional results

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