CASES REPORTED. Page
Omo, E. ,
CmCUIT COURT, D. [:r;DIANA.
1148 Brush Electric Co. v. Fort W syne Electric Light Co... .. 826 Consolidated Roller-Mill Co. v. CIRCUIT COURT, S. D. Omo, W. D. Richmond City .Mill-Works 474 Doggett, Bassett & Hills COy. Black 439 McClaskey v. Barr 559 Lapham Dodge Co. v. Severin 762 Root v. ]\1t. Adams & Eden Park InRindskopf v. Vaughan 894 clined Ry. Co 760 CIRCUIT COURT, E. D. WISCOKSI:&. CIRCUIT COURT, E. D. TENNESSEE. Velie v. Manufacturers' Accident 824 Indemnity Co. of The United Cisson, In re Morris, In re' 824 States ....··.···..···· , . · .. .. 545 Wolf v. Cook _ 432
Kimberly v. Arms
Woodburn v. Cincinnati, N. O. &T. United States v. Bain P. Ry. Co....··..·..·..· " ' ..··.· 731
Case Manuf'g Co. v. Smith......... 889
CIRCUIT COURT, D. ARKAJilSAS.
Brown, Ex parte. . . . . .. ·· · · .. · .. 71 Lockhart v. Little Rock & M. R. McClusky, Ex parte 71 Co 681 CIRCUIT COURT, E. D. ARKANSAS.
Central Trust Co. of New York v. St. Louis A. & T. Ry. Co ...··.·.. 426
CIRCUIT COURT, W.
Cary & Moen Co. v. McKey ..·····. 858 Briscoe v. Southern Ran. Ry. Co..· 278 Castro v. Seeberger 581 Brown, Ex parte................... 81 Farley, Ex parte , ,. 66 Central Trust Co. of New York v. Iowa Cent. Ry. Co 851 Wilson, Ex parte.................. 66 Farwell v. Seeberger 529 Lesher v. .. . . 61 CIRCUIT COURT. D. COLORADO. :McVicker v. American Opera Co 861 787 Morris v. Seeberger................ 58 Cheesman v. Shreeve ..· _ National Automatic Device Co. v. Hakes v. Burns. . · .. .. . · .. .. · · .. . . . 88 Lloyd 89 Schlesinger v. Seeberger '" 872 CIRCUIT COURT, N. D. IOWA, E. D. Thompson v. E. P. Donnell Manuf'g Co ....·...·.··........·...·.···. 383 Abraham v. North German Ins. Co .. 717 Vanacker v. Seeberger............. 57 First Nat. Bank v. Forest 705 Giles v. Paxson " 288 CIRCUIT COURT. N. D. ILLINOIS, N. D ·. CIRCUIT COURT, N. D. IOWA, W. D. Richards v. Michigan Cent. R. Co., three cases '" 165 Anderson v. Bowers _. 708 v. Nelson 783 CIRCUIT COURT, S. D. ILLINOIS. CmCUIT COURT, S. D. IOWA. Thomas v. Wabash, St. L. & P. Ry. Co 126 McBride v. Grand de Tour Plow Co. 162
OmcuIT COURT, D; KANS-U, Brookway v. Township of Oswrego·· Dohrendorf, In re. . · .. · ·· · · ·. .Tackson, In re Kieffer,Ex parte Walker v. Cronkite Williams v. Williams IhsTRICT COURT, D. KANSAS. Spenoer, In re
CIRCUIT COURT, W. D. MISSOURI, C. 612 Robinson v. Brooks 148 37e. CIRCUI'!' COURT, D. NEBRASKA. 399 1,33 Beadle v. Beadle 521 East Omaha Land Co. v. Jeffries Tullock v. 'Vobster County Woolworth v. Hoot 149
emCUIT COURT, D. MJNN1lls0TA.
CmCUIT COURT, N. D. CALIFORNIA. Deering v. McCormick Harvesting Mach. Co " 236 Francoeur v. Newhouse 618 Deering v. Winona Harvester Siegfried v. Phelps 660 'w orks, two cases 236 Teall v. Slaven 774 CmCUIT COURT. E. D. MISSOURL DISTRICT COURT, N. D. CALIFORNIA.
Weed Sewing-Machine Co. v. Baker 56 Raymond v. The Ella S. Thayer ...· 902 CmCUIT COURT. E. D. MISSOURI. E. D. Barlow v. Delaney '" :Booth v. St. Louis Fire-Engine MaIiufg Co..................... Carrington v. Lentz.. Fifth Nat. Bank v. Armstrong..... Royer v. Schultz Belting Co ..··.··· Royer v. Sch ultz Belting Co; ...· '" Schultz Belting Co. v. Willemsen Belting Co : Sims v. Schult United States v. Koch Walker v. St, Louis, A. & T. H. R. Co............................... CIRcurT COURT, S. D. CALIFORNIA.
62 97 Cuddy. Ex parte Farmers' Loan & Trust Co. v. San Diego Street· Car Co 105 1 609 18 Rawitzer v. Wyatt 46 United States v. Southern Pac. R. Co 611 158 160 CIRCUIT COURT. D. NEVADA. 156 143 Delbanco v. Singletary 177 250 Levy v. Singletary 177 United States v. Eureka & P. R. Co. 419 1 United States v. Richmond Min. Co 415 DISTRICT COURT. E. D. MISSOURI, E, D. CIRCUIT COURT, D. OREGON. Crawford v. United States 446 Schwebel v. Bothe 478 Coleman v. Flavel.. 854 United States v. Bayle 664 United States v. Dalles Mili tary United St,ates v. Bishop ..··.···..·· 4541 Road Co 114 United States v. Clarke ..·.·.······ 325 United States v. Oregon Cent. Mili· United States v. Holmes 750 tary Road Co 120 United States v. Stubblefield 454 Wilson v. Fine.................... 59
ARGUED AND DETERMINED
BOOTH et al.
ST. LoUIS FmE-ENGINE MANUF'G Co. ST. LOUIS, A. & T. H. R. Co.
(C4n'cuit Court, E. D. Missouri, E. D. September 28, 1889.)
A corporation cannot acquire a residence in a lltate tban one in wbich it ill incorporated, within the meaning of act Cong.1887, which providellthat, "when the juri8diction is founded only on the fact-that the action is between citizens of differ· ent 8tat68, suit 8hall be brought only in the district of the residence of either plain·. tiif or defendant." .
Oli Motiollsto Dismiss; John S; Booth, fOr Booth et al. EdwardJ. O'Brien, for the St. Louis Fire-Engine Manuf'g Co· .A. R. Taylm, for James L. Walker. Taylor & PdUard, for the St. Louis, A. & T. H. R. Co.
BREWER, C. J. We have here two cases, in each of which the plaintiffs are not citizens nor residents of this state, and in each of which the defendant is a corporation organized in some state other than this. They are suits originally brought in this court; and the question is whether, under the act of 1887, this court can take jurisdiction. In each of them it appears that the 90rporation defendant has an office and transacts business in this state, and some of its officers reside here; and in one of them (No. 3,057) it would seem from theallegatiolls that all the officers are here, and all its business transacted here. The law of 1887 provides that, "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 diswet of the residence of either the plaintiff or the defendant." These, cases andjurisdicti<!n is only invoked on the ground ofdiverse , '.' ,.
citizenship; SO, the plaintiffs being confessedly non-residents, the question is whether the defendants can be considered as residents of this district. expressed by the judges of There has been some the trial courts, and I do noHrltend to enter into any discussion of the question. I simply state what conclusions I have come to in this matter, not from this but,. in prior cases. In three cases the supreme court of theUnifud States have spoken Of the residence and and citizenship of corporations. In the case of Insurance Co. v. Francis, 11 Wall. 210, the court says:
"The declaration avers that the plaintiff in error (the defendant in the oUhe state court below}.is"oorporation cf'8ated by,an act of the in and doing busln!!sstnere under laws of the state. This, in.-'legal effect, is an averment that the defendant was a'citizen of New York, because a corporation can have no legal existence outside of the sovereignty by w:!.\ic.hJtwss created. Its place of residence is there, and can be nowhere else. Unlike a natural person, it cannot change its domicile at will; and, although it may be permitted to transact busineRs where, its does not opllfate,tt cannot on that account a dence tilere';' ' I ." ' , d , . ' ' . . ,
" A corporation cannot change its residence or its citizenship. It can bave it is located by Of authority its legal 1l0U}eonlyat, the plllce
poiT'y PchqUenberger t, 96 JI. 8. 377 I the court
of its chart,er. II
And in tl;le still later case of Railroad 00. v. Koontz, 104 U. S. 0, the; ,,","" ,
·"By doing business away fromtbeif'legal residence, they do not change butsimplYextendi tile field of their operations. They reside at home, but do business abroad." "
Now, those declarations of the supreme court are not simply affirmative in character, asserting that a corporation is a (litiZE'pandl'esident of 1(l1'eates and declaring that it cannot the change its citizenship or residence.. lnthe light oUhose declarations, I hold that a corRorat.ion u,nder the lawsofapqtheJ; state is a citizen of and resident within that state. It can acquire no residence here. D;lo,t.lons . be sustained, f!.nq, suits dii3missed.,
al· .,. BmNBERG6t al., (tWO(lMes.
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'D; QeCYrgtd, W. D. July27.1887.) " , ' ;,',
, When,propert)' '18 seized lionel MId uw!ef, mesne or final P1'OQess otelther a statE! or United ·State·. court, it i8 in the laW.,and tile :exolusive jurisdiction of the' court fromwhlch the process bas issued, fortha purpl:ises of tbe writ, and .tb.e,POssession of, the officer haiving it in oustody: cannot be disturbed by; another court of co-ordinate jurisd.iotion. SUch disturbance would be tc) invade the jurisdiction of the court by whose command it is held, and to violate tbe law which, that jurisdiction is appointed to administer.
, '1'EF;FT. tI.
or course; this rule isnotappltoable in those cases where the COurts 'ot 'the '(Tnited States exercise superior jurisdiction for the purpose ofeliforciDg the supremacy of the constitution and laws of the United States.
The statutes of Georgia pr@vide that, for the foreclosure of a chattel mortgage. the mortgagee shall make of the amount of principal and interest due thereon, annex the amdavit to the mortgage, and file both in the office of the clerk of'the superior court of the county in which the mortgagor resides. The clerk shall thereupon issue execution, bearingteste in the name of the judge of the court, com, manding the sl(le of the mortgaltedproperty, and the shel'l1f shall proceed to sell the same as in other judicialsQl.es. The mortgagor may avail himself of his defenses by making affidavit of illegality to the execution. and, when it is filed, the levying officer shall postpone the sale, and return all the papers to the court from which execution issued for a trial of the case by jury. Held. that such a foreclosure is a of the state court, within the meaning of Rev. St. U. S. § 720, providing that no mjunction shall be granted by a federal court to stay proceedings in a state court. '
Where a sheri1f under such an execution has taken possession of the prpperty of an insolvent mortgagor for the p'lrpose of such foreclosure, the court from which process issued has complete jurisdiction of the subject, and the federal courts will decline to appoint a receiver to take charge of the balance which may remain after satisfaction of the mortgage liens, and to distribute the same to the general cred· iters. "
In Equity. On bill for injunction and appointment of Walter R. Brown, Wimbish &: Gilbert, and Francia D. Peabody, for Tefft, Weller & Co. Hill &: Harris, for Dunham, Buckley & Co. Peabody, Brannon &: Hatcher and L. F. Garrard, for defendants. SPEER, J. Separate bills were filed by the plaintiffs. citizens of New York, against Sternberg & Loewenherz, an insolvent firm of Columbus, in this district, with averments which, if proven, under repeated decisions of this court, make an unquestionable case for the appointment of a receiver to take charge of the assets of the insolvent firm, and to hold them, subject to proper disposition by the final decree of the court, for. the satisfaction of the creditors. A temporary 'injunction having been 'granted, it appeared on the hearing of the rule to show cause why an injunction proper should not issue, and a receiver be appointed, that the entire stock of merchandise ofthe respondents, Sternberg & Loewenherz, amounting in value to about $150,000, had been taken ip charge by J. G. Burrus, sheriff of Muscogee county and of the superior court of the state of Georgia for that county, by virtue ofthe foreclosure ofseveral chattel mortgages made by the insolvent firm to certain preferred creditors. These mortgages, in the aggregate, did not exceed the sum of $31,566; but it appeared that various other creditors had .placed in the hands of the sheriffother mortgages amounting to $15,415, and, under the provisions of a state statute, (Code, §§ 3969, 3977,) claimed the right to share in the distribution of the fund to be raised. by the sale of the merchandise levie4. upon under the chattel mortgage fl. Certain other creditors };tad sued out the sheriff to subject any balance in his han<Js to their debts,and, aubsequentlyto the filing of the bills and of the temporanr by this court, a bill similar to those.. pending here had ,1;>oon tqp Honorable J./\1aQrS' M,.
the judge of the superior. coul1;of Muscogee county) Ga.) by which an injunction and the appointment of a receiver were sought before that tribunal. It appeared further that) after the satisfaction of the mortgages which had been foreclosed under the state law) and also the mortgages which had been placed in the hands of the Illheriff to share in the fund) all of which last-mentioned mortgages were left with the sheriff before the litigation here began) there will be large values in the hands of the sheriff which it is inillisted are subject to distribution by this court) and which its receiver) when one is appointed) would be entitled to have for the benefit of the creditors who have sought this foruw to enforce their rights. On the hearing the complainants were) at once, confronted with the proposition that the foreclosure of the chattel mortgages, and the seizure of the stock by the sheriff) had given absolute and exclusive jurisdiction of the subject-matter to the court of the state, and that the court of the United States could not) with judicial propriety, interfere; and upon this proposition.a great many authorities were cited) among them Digg8 v. Wolcott, 4 Cranch) 179; section 720, Rev. St.; Dial v. Reynolds, 96 U.S. 340; Hagan v. Lucas, 10 Pet. 400; Taylor v. Carr:yl) 20 How. 583; Freeman v. Howe, 24 How. 451; Chapin v. James, 23 ArneI'. Rep. 412. The plaintiffs, in reply to the obvious weight of these authorities, pressed with much force the argument that the foreclosure of a chattel mortgage upon an e:r:parte affidavit, and the subsequent sale of the mortgaged. property, as directed by the Georgia statute, do not constitute" proceedings in any court of a state," and they also maintained that the custody of the property by the sheriff was not the custody of the state court. They relied upon the case of Weil v. Calhoun, 25 Fed. Rep. 865, where Judge McCAvheld, in the circuit cotut for the northern the ordinary of a county is required by district of Georgia, that) a special statute to examine the returns, count the votes, and declare the result of a local election, his action in this regard is not such a "proceed-. ing of a court n as will inhibit an injunction from a federal court. A strbngercaseis that of Carpenter v. Talbot, 33 Fed. Rep. 537, where it was held that a foreclosure sale by a public officer, under a chattel mortgage, is not a proceeding in a state court, within the meaning of section 720, Rev. St. There seems, however) to be a palpable distinction between the Vermont statute, in contemplation of which the decision in Carpenter v. Talbot was made. and the Georgia statute, under which the chattel mortgages here were foreclosed. The former provides that, where the condition of the mortgage is broken, the mortgagees may cause the mortgaged property to be sold "at public auction) by a public officer." The Georgia statute requires the mortgagee to go before some officer authorized to administer an oath, and, having made affidavit of the amount of principal and interest due on the mortgage, to annex the affidavit to the mortgage, and file both in the office of the clerk of the superior court in the comity where the mortgagor resides,etc. It shall then be the duty 'Jf the clerk to issue an execution directed" to all and singular the sheriffs and c()roners of this state," commanding the'sale of the mort-
TEFFT t1. STERNBERG.
gaged property to satisfy the principal and interest, together with the coat of proceedings to foreclose the said mortgage. The sheriff then proceeds to advertise and sell, as in otherjudicial sales. The mortgagor may avail himself of his defenses. These are presented by an affidavit of illegality to the execution. When this affidavit is filed, the levying officer, by direction of the statute, shall postpone the sale, and return all the proceedings and papers in the case to the court from which the execution issued to be tried by ajury, etc. Now, can it be doubted that this is a proceeding in a court of the state? It is altogether unlike the foreclosure in the case from Vermont. Indeed, the Code of Georgia (section 3504) providing that an' affidavit which is the "foundation of a legal 'proceeding" cannot be amended, the supreme court of the state, in the case of Rich v. Colquitt, 65 Ga. 115, held that the affidavit as to the principal and interest due on a mortgage, under section 3971, was not amendable, it being, of course, the "foun. dation of a proceeding at law." Besides. the execution itself must bear test in the name of the judge of the court, (Code, § 3632,) and must be returned and docketed as other executions, (rd. § 3635.) It fol. lows, therefore, indisputably in the opinion of the court, that the foreclosure of a mortgage upon personalty in Georgia is a proceeding in the state court; that our duty as to this question is plainly defined by the supreme conrtof the United States in numerous decisions, many of which have been cited by defendants' solicitors, supra, and many others equally as cogent and conclusive. These are admirably collated and considered in the case of Corell v. Heyman, 111 U. S. 176,4 Sup. Ct. Rep. 355, Mr. Justice MATTHEWS delivering the opinion of the court. That emi. nent jurist quotes with approval the following of Mr. Justice NELSON in Freeman v. Howe, supra, which itself was but an applicatioll of Taylor v. Carryl, 20 How. 583: "The main point there decided was that the property seized by the sheriff under tbe process of attachment from the state court. and while in the cus. todyof the ollicer. could not be seized or taken from him by a process from tbe district court of the United States, and that the attempt to seize it by the marshal. by notice or otherwise, was a nullity, and gave the court no jurisdiction over it." And, further: "The majority of the court were of opinion that, acrording the courseo! decision in the case of conflicting authorities under a state and federal process, and in orderto avoiu unseemly collision between them, the question. as to which authority should. for the time, prevail did not depend upon the rights of the respective parties to the property seized, whether the one was paramount to the other, .but upon tbe question which jurisdiction had first attached by tbe seizure and cllstody of tbe property under its process." It does not matter whether it is process in rem or process at law or in equity, the right to hold the property belongs to the court under whose process it was seized. Chancellor Kent, in 1 Comm. 41O,baving stated thl1-t "if a marshal of the United States, under an execution in favor of the United States against A., should seize the person or property of B., the state courts have jurisdiction: to protect the person and the prop-