NORRIS , 'D. ATLAS STEAM-SHIP CO.
5. There is another fatal objection-to the jurisdiction ofthia court. The defendant Minnie G. Kinsey is joined as a co-respondent with Thomas Bray. She is a citizen of this state and district. She is an heir equally withcomplainants.Np Wrong is ,allege4 against her. Her interests, as appear from the bill, are in harmony with those of the cOmplainants. She is, a party to any partition, proceeding: Dameron v. Ja'TYU? 8O'n' 71 Barney v. BaltimoreOity, 6 Wall.'280. Why is sliejoined as, a co-resp9udent? No whateveris assignedjtherefor; 8:Pprehend that none other can be assigned th'"1n the fact that she could, 110t be joined as a co-comp1llinant without ousting jurisdiction of this court, for the reason that she is a citizen, of the state of Missouri, and of this federal district. The question, therefore, presents itself on the face of this, Can the by this maneuver bring this controversy lllto}his jurisdiction? The is that alfthe plaintiffs ,onolle side, wllere the action is instituted in the United States court, must be ofthe state inwhich the suit is brought. It would,in my opinion,be ,p,alpable fraud Oil Qur jurisdictIon Hsuch a supterfuge could resorted ,to successfully by making one of the necessary parties a defend./lllt whose intereets are all in common with those complainants, and against no antagonistic acUs itlleg!!d. ,:,this question has undergone thorough examination in the case of Eland v.Fleeman, 29 Fed. Rep. 669, in a case quite parallel in principle; and, approving the' principle therein announced, as. applied to the facts of this case, I hold that jurisdiction cannot thus be thrust upon this court. 6. There are other objections made to this bill, but they are not of sufficient importance to j\f8tify the prolongation of this already too long opinion. Demurrer sustained.
(CirCUit CO'Urt. S. D. New York. January 29,1889.)
Where; the action is one of which the circuit courts have jurlsl!llctloD; under act Cong..:Ttlarch 8; 1887, § 1, the controversy being one between a citizen of , the stat8',and a foreign. subject, and the amount in dispute exceeding $2,000, the provision of that section in relation to the district where the action Shall be brought does not affect the question of jurisdiction, and the privilege it accords to defendant is waived by filing a appearance .aJ1d answ-ering to the merits. '
'. At Law. :Motion to .set :aside service of summons. Action for damages for personal injuries, brought by Abraham Norris against the Atlas Steam-Ship Company, LimiteLL .Thepresent motion is based on the ground that defendant, being a corporation, is not an inhabitant olthe district, and therefore cannot be sued therein. .Before making the motion" defendant had appeared generally, answered to the merits, and gone to trial without raising the point.
EvereU p.. Wheeler, for the motion. Hetinan H. Shook, contra.
LACOMBE, J. The main pomt raised upon this motion need not be now decided. Inasmuch as the coniroversy is one between a citizen of .a state and.a foreign citizen or subject, and the matterin dispute exceeds the sum of $2,000, it is within the class of cases in which, by the express language of'the fifl)t clause of section 1 ofthe act of 1887, the circuit courts a,re given jurisdiction. Wilson v. Telegraph (Jo., (FIELD and SAWYER, JJ.,) 34 Fed. Rep. 563, 564; Denton v. International, 36 Fed. construction of the second clause Rep. 1. . Whatever may be the .of that section, (beginning "But nO person shall be," etc.,) it affects, not the question of federal cognizance, but solely the question of the place of brin@ng suit by original process in cases of federal cognizance. FaleB v. RailmadCo., 32 Fed. Rep. 673. The privilege which it accords to a defendant, viz., that he shall be sued only in the district of which he is an inhabitant, is one which maybe waived. Halstead v. Manning, 34 Fed. Rep. 565.. It was waived in this case by filing a. general appearance, andansweririg to the merits: In this conclusion Judge WHEELER, with whom I have consulted, concurs.
WAKELEE "'. DAVIS.
(O'ire'Ult Oourt, 8. D. NeUJ York.
EQt1ITY-JURISDJCTION-ADEQUATE REMEDY AT LAW.
On an application for a discharge in bankruptcy, the specifications of tha opposing creditor were dismissed upon the contention of the bankrupt's at· torney that the creditor's debt had been reduced to judgment after the petie tion was filed, and that it could not be affected by the discharge, and the discharp;e was granted. Held, that a complaint in an action on the judgment, which sought only a money judgment, and such other relief as to the court might seem fit, did not state a cause of action cognizable in equity, though it . alleged .·hat defendant was estopped to plead the discharl!:e; there being no averment that defendant had taken or threatened to take any proceeding prejudicial to complainant's rights, or that the bill was flied in aid of another 'action, .
In Equity. On demurrer hill. This action, commenced upon the equity side of the court, is based upon a judgment recovered in 1873, in a state court of California. The only specific relief demanded is for a money judgment. Briefly, these are the facts: In August and September, 1869, the defendant, Erwin Davis, made six' promissory notes, aggregating $15,720, and delivered them, fall ,value, to Henry P. Wakelee. On the 30th of September, 1869, Davis was adjudicated a bankrupt, on his own petition, and Wakelee proved the notes against the estate. On the 28th of June, 1873)