RUNKLE V. LAMAR INS. CO.
pany, except that she was assured that the transaction was all right and proper, and acted upon the faith of that assur· ance. Her husband was, in this case, in no sense her agent; on the contrary, he dealt not for her but with her; was one of the parties asking the loan from her, and I think, therefore, that this is not a case in which the doctrine of notice to the husband is notice to the wife can have any force. It is also insisted that the trustee of Mrs. Burch, with respect to her separate estate, (De Cordova,) knew the facts, and that notice to him is notice to her; that is, that notice to the trustee is notice to the cestui que trust. The answer to that is that De Cordova, although her trustee with regard to her separate estate, was not her trustee with reference to this transaction at all. Holding as he did the naked title to her lands, and for her use and benefit, he joined with her in making the mortgage for the money to be loaned to these parties; but that was a separate transaction from the matter now in controversy, to-wit, the hypothecation of these bonds, and with that the trustee had nothing to do. The result of my examination of the case is that the exceptions to the report of the master must Le overruled.
;RUNKLE t1. THE LAMAR INSURANCE COMPANY.
((Jz"rcuit Oourt, 8. D.Ohzo.
JURISDICTION-FOREIGN INSURANCE COMPANY- H.EV. ST. PAU'fE SCHOLLENBERGER,
f 73:J -Ex
96 U. S. 369.-A foreign insurance compa'ny is subject to the jurisdiction of a circuit court in a district other than that· of which it is an inhabitant, when, in accordance with the statutory provision of the state in which such district is situated, it has dqly authorized an agent of the company in that state to acknowledge service ot proceos in such state for and on behalf of the company, and 'has consented that the service of process upon such agent shall be taken and held to be as valid as if served upon the company to the laws. of that or any other state or country.
Motion to set aside and quash the service of the summons.
Taft et Lloyd, for plaintiff. John F. Follett and J. M. Simon, for defendant. .sWING, D. J. This action is brought by the plaintiff, So citizen and resident of the southern district of Ohio, against the defendant, whom the petition avers to be a corporation created by the laws of New York, and an inhabitant of that state, and who, it alleges, did, on the twentieth day of August, A. D. 1878, at the city of Cincinnati, Ohio, in consideration of the payment by the plaintiff to the defendant of a premium of $60, by itFl agent, duly authorized, there make its policy of insurance in writing, and delivered the same to the plaintiff, insuring certain property against loss by fire. That loss has accrued to the amount of $833.62, for which he claims judgment. The command of the summons issued upon the petition is: "Yon are hereby commanded to summon the Lamar Insuranc" Company of New York, (John S. Taylor, agent,) citizen of .!Lnd resident in the state of Ohio." Upon the summons the marshal returns: "Received this writ at Cincinnati, Ohio, November 24,1879, and served the same, by true copy hereof, to John S. Taylor, agent of the Lamar Insurance Company of New York, at 2: 35 P. M., November 25, 1879." The defendant filed a motion to set aside and quash the service of the summons for the reasons: First. That the said defendant is a corporation organized under the law!! of the state of New York, and is a resident and an inhabitant of said state of New York, and is not a resident or inhabitant of the state of Ohio, or of the said southern district of Ohio. Second. Said summons was issued against the said defendant as a citizen of and resident in the state of Ohio, which is not true. Third. The defendant cannot be sued or required to answer in this court. The question presented in argument, and intended to be raised by this motion, is whether this court can acquire jurisdiction of a foreign insurance company, doing business in this
RUNKLE t1. LAMAR INS. CO.
district, by the service of a summons upon its agent, residing within this district. The motion is based upon the seven hundred and thirtyninth section of the Revised Statutes, which provides "that no civil suit shall be brought against an inhabitant of the United States in any other district than that of which he is an inhabtant, or in which he is found at the time of serving the writ." The statutes of the state of Ohio in regard to suits against foreign insurance companies provide, (section 3658:) "Any such company desiring to transact any business by an agent in this state shall file, with the superintendent, a written instrument, duly signed and sealed, authorizing any agent of the company in this state to acknowledge service of process in this state for and on behalf of the company, consenting that service of process, mesne or final, upon such agent, shall be taken and held to be as valid as if served upon the company according to the laws of this or any other state or country." Section 5030 provides "that in case of foreign insurance companies the suit may be brought in a county where the cause of action originated." And section 5046 provides that "when the defendant is a foreign corporation, having a matlaging agent in this state, the service may be upon such agent." It is contended by the defendant that being, under the decisions of the supreme court of the United States, for the purposes of suit, a citizen of the state creating it, its habitation is fixed in that state, and it cannot be "found" outside of that state so as to be served with a summons in any other district than that in the state, which created it, and that the statutes of Ohio cannot have the effed to change this rule of law; and in support of this proposition we were referred by learned counsel to Pomeroy v. N. Y. d N. H. R. 4 Blatch. 220; Myers v. Darse, 13 Blatch. 22. These authorities certainly do sustain the proposition, as well as does that of Stillwell et ai. v. The Empire Fire Ins. Co. 4 Central Law Journal, 463, decided by Judge Dillon. A different view, however, seems to have been held by Justice McLean, in French v. The Lafayette
Fire Ins. 00. 5 McLean, 461, and by Judge Woods, In Knote v. Southern Life Ins. 00. 2 Woods, 479. But, whatever may have been the different decisions upon this question, and the reasons in support thereof, it is not now necessary to discuss, for the law upon the subject has been recently definitely settled by the supreme court of the United States, in Ex parte Schollenberger, 96 U. S.369. In that case suit was brought in the circuit court of the United States for the eastern district of Pennsylvania, by a citizen of that district, against a foreign insurance company, and service of process was made upon its agent, who resided within the district. The company was doing business in Pennsylvania, under & license, under a statute which required that the company should file a written stipulation, agreeing that process issued in any suit brought in any court of that commonwealth having jurisdiction of the subject-matter, and served upon the agent specified by the company to receive service of process for it, should have the same effect as if personally served upon the company within the state. The provisions of this statute are substantially those of the state of Ohio, supm. In that case Mr. Chief Justice Waite, after citing, in support of the jurisdiction, Railroad Oompany V. Harris, 12 Wall. 65 j Railway Oompctny v. Whitton, 13 Wall. 270; Lafayette Insurance Co. v. French, 18 How. 404 j and Ex parte McNeill, 13 Wall. 236, says: "A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located, by or under the authority of its charter j but it may, by its agents, transact business anywhere, unless prohibited by its charter, or excluded by local laws. Under such circumstances it seems clear that it may, for the purposes of securing business, consent to be 'found' away from home, for the purposes of suit growing out of its transactions. The act of congress prescribing the place where the person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the
RUNKLE V. LA-MAR INS. CO.
citizenship of the party is sufficient, a defendant may consent to be sued anywhere he pleases; and, certainly, jurisdiction will not be ousted because he has consented. Here the defendant companies have provided that they can be 'found' in a district other than that in which they reside, if a particular so 'found.' mode of proceeding is adopted, and they have In our opinion, therefore, the circuit court has jurisdiction of the causes, and should proceed and try them. "We are aware that the practice In circuit courts generally has been to decline jurisdiction in this class of suits. upon an examination of the reported cases in which this question has been decided, we find that in almost every instance the ruling was made upon the authority of the late Mr. Justice Nelson, in Day v. The Newark India-Rubber Manufacturing Co. 1 Blatchf. 628, and Pomeroy v. The New York et New Haven R. Co. 4 Id. 120. These cases were decided by that learned justice, the one in 1850 and the other in 1857, long before our decision in Railroad Co. v. Harris, 8upra, which was not until 1870, and are, as we think, in conflict with the rule we there established. It may also be remark(ild. that Mr. Justice Nelson, a member of this court, concurred in that decision." In 'the cause now before the court, the plaintiff bein&, Ii citizen of this district, and the defendant a citizen of the state of New York, the residence 'of the parties is such as to give tliis jurisdiction ;aIld the defendant having complied with the statutes of Ohio, thereby consented that it might be sued within this district, and that process might be served upon their agent; and suit having been brought in this court, and process having been served upon their agent, jurisdiction has been obtained of the defendant. The motion to quash will, therefore, be overruled.
YORK SAVINGS BANK and another.
(Circuit Oourt, S. D. New York. April 24, 1880.)
EEJiojVAL-NECESSARY PARTY TO SUIT-SAVINGS BANK-AcT OF MARCH
3, action was brought by a widow residing in New York to recover moneys deposited by her late husband, as trustee, in a New York savings bank. On petition of the bank, under a statute of the state, (Laws 1875, c. 371, p. 401,) the alleged executor of the decedent, defendant, The hank subseresident in Connecticut, was made a quentlyput in an answer, setting up that it could not ascertain which of the two claimants was entitled to the moneys; averred its readiness to pay them to the person lawfully entitled thereto; asked for a stay of proceedings until a legal representative of the estate of the decedent should be appointed and made a party to the action; and prayed that, when all the parties necessary to render the judgment of the court a protection to it should have been brought in, such parties might interplead and settle their rights among themselves, and that such bank might pay the moneys into court to await the final determination of the action, and be stricken out as a party to the action, and its liability for the said moneys thereupon cease. Held, that until the moneys had been paid into court, and its liability for the deposit had ceased, the bank was a necessary party to the suit; and, therefore, under the circumstances of the case, the cause could not be removed from the state court under section 2 of the act of March 3, 1875.
Motion to remand. Francis N. Bangs, for motion. Charles C. Beaman, Jr., contra. BLATCHFORD, C. J. This suit was originally brought in the supreme court of New York by the plaintiff against the New York Savings Bank. The cOfIlplaint put in in the state court demanded judgment against the bank for $25,000, and interest and costs. It prayed no other relief. The claim sued on was made under an alleged right of the plaintiff to moneys which her deceased husband, Benjamin Bailey, had on de. posit in the bank at the time of his death in the name of "Benjamin Bailey, trustee." The bank is a savings bank incorporated under the laws of New York. By section 25 of the act of the legislature of New York, passed May 17, 1875, (Laws 1875, c. 371, p. 408,) it is provided as follows: "In all actions against any savings'bank, to recover for moneys on deposit therewith, if there be any