United States v. Orshek
| Decision Date | 01 December 1947 |
| Docket Number | No. 13512.,13512. |
| Parties | UNITED STATES et al. v. ORSHEK et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William H. Lamme, of Fremont, Neb., Walter Wm. Pearson and James R. Phillips, both of Chicago, Ill., Spear & Lamme, of Fremont, Neb., and Murphy, Pearson & O'Connor, of Chicago, Ill., for appellant.
Arthur C. Sidner, of Fremont, Neb. (Yale C. Holland and Edwin Cassem, both of Omaha, Neb., Sidner, Lee & Gunderson and Kennedy, Holland, DeLacy & Svoboda, all of Omaha, Neb., on the brief), for appellees.
Before GARDNER, WOODROUGH and RIDDICK, Circuit Judges.
This is an appeal from a judgment dismissing the complaint for improper venue. The parties will be referred to as they were designated in the trial court. The action was one brought under the so-called Miller Act, 40 U.S.C.A. §§ 270a to 270e, inclusive, in the name of the United States of America for the use and benefit of an employee of a subcontractor against the principal contractor and his surety on a bond given to the United States for the protection of persons supplying labor or material in connection with the construction of a war housing project near Alliance, Nebraska. Both defendants were served with summons at Omaha, Nebraska and the complaint was filed in the Omaha Division of the District of Nebraska. Defendants filed a motion to dismiss the complaint on the ground that it appeared from the complaint that all parties were non-residents of the District of Nebraska and that the contract on which the complaint was based was to be performed at Alliance, Nebraska, which is in the Chadron Division of the District of Nebraska, and that the complaint alleged that Francis R. Orshek, doing business as Francis R. Orshek Company, had his place of business in the City of Amarillo, Texas. There is no allegation in the complaint about the residence or citizenship of the defendant Orshek, other than the recital as to his principal place of business. It appears from the memorandum opinion of the trial court that it accepted as true defendants' allegation that it appeared upon the face of the complaint that "All of the parties to the proceeding are non-residents of the State of Nebraska." It appears from the record, however, that both defendants were served with process in the Omaha Division of the District of Nebraska, and there is no allegation in the complaint with reference to the citizenship or place of residence of the defendant Orshek. For the purposes of federal jurisdiction, a corporation has its home, residence, domicile and citizenship where it was originally incorporated and not elsewhere, regardless of where its principal place of business may be located, and there is no presumption that the principal place of business, either of a corporation or of an individual, is the residence of such corporation or individual.
As the motion was interposed by the defendants the burden of proof was upon them to show that neither of the defendants was a resident of the Omaha Division of the District of Nebraska, and this they have failed to do. If we are to rely upon inferences, we should be warranted in inferring that the defendant Orshek resided where he was personally served with process. As there was no basis for the assertion that all of the parties to the proceeding are non-residents of the State of Nebraska, the very ground on which the motion was based failed.
The Miller Act, so far as here pertinent, provides that, "Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit * * *." 40 U.S. C.A. § 270b(b).
The State of Nebraska constitutes one district and, confessedly, the contract was to be performed within that district. It is, however, contended that the question of proper venue as between different divisions in the District Court for the District of Nebraska is governed by the Act of February 27, 1907, 34 U.S.Statutes at Large, Pt. I, p. 997 et seq., and particularly Sections 7 and 8. Section 7 of that Act provides, "That all civil actions not of a local nature, against a single defendant...
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