BAWITZER II. WYATT.
(Oi1"cwf,t Court, S. D. California. December 11, 1889.)
FEDERAL COURTs--J"URIBDICTION-DlVERSE CITIZENBHIP.
Under the act of oongresB (25 St. U. S. 434) that, when an action iB be- . tween citizens of different Btates, it may be brought" in the district of the residence of the plaintiff or defendant," an action by a non·reBident against a partnership, whose members are residents of different states and districtB, m..y be brought in the district of the residenoe of one of them.
ABATEMENT-ANOTHER ACTION PENDING.
The facts that a partnership has become insolvent, and passed into the hands of a receiver appointed by a Btate court of another state, before the commenoement of an action ag-<Linst it in the federal court of the distriot of the residenoe of one of its members, and that plaintiff's olaim has been presented to the reoeiver, who still retains the partnership affairs in his hands uDsettled, are no bar to the aotion.
At Law. On demurrer to plea. . Rothchild & Ach and Brunson, Wilson & LamrM, for plaintiffs. Dooner & Burdett, for defendant Henry G. Newhall. Ross, J. The plaintiffs, who are citizens ·of the state of Connecticut, bring this action against C. A. Wyatt, who is alleged to be a citizen and resident of the state of New York, and Henry G. Newhall, who is alleged to be a citizen and resident of the state of California and of this judicial district, and for cause of action aver, in substance, that at the times stated in the complaint the defendants were partners doing business nnder the firm name of C. A. Wyatt & Co., and that plaintiffs sold and delivered to defendants, at their instance and request, goods, wares, and merchandise of the value 0[$74,391.76, no part of which has been paid, although the whole thereof is due, and payment has been demanded. The defendant Newhall has appeared and filed a preliminary answer in abatement of the action, in which it is alleged that the obligation upon which the suit is brought was a copartnership obligation of the firm of C. A. Wyatt & Co., which firm was, prior to the bringing of the suit, insolvent, and had theretofore passed into the hands of a receiver appointed by the supreme court of the state of New York; and that the demand sued on by the plaintiffs, verified by the plaintiff Lewis F. Rawitzer, was presented to the receiver for adjustment and that said copartnership affairs are still unsettled, and in the hands of the said receiver. The sufficiency of this plea is raised by a demurrer thereto filed by the plaintiffs. In neither the complaint nor the plea is it made to appear where the obligation arose. The jurisdiction of this court is founded only on the fact that the action i" between citizens of different states, and, that being so, the suit is authorized to be brought only "in the district of the residence of the plaintiffor defendant." 25 U. S. St. at Large, 434. It has been brought in the district of the residence of the defendant Newhall, and I think, by virtue of the statute referred to, rightly so. Since the defendants are citizens and residents of different states, and therefore of different districts, to hold otherwise would be, in effect. to hold that where there is v.40F.no.1l-39
more than one defendant, and they are residents of different states, and of different districts. the suit can only be brought in the district of the residence of the plaintiff; which would, it seems to me, be contrary to the language and intent of the statute. ' The fact that the firm of Wyatt & Co. had, prior to the commencement olthe action, become insolvent, and had passed into the hands o( I;L receiver appointed by the New York supreme court; is nota bar to the present suit. It is true that it'1s alleged in the plea. that the demand sued on herein was presented by the plaintiffs to the receiver appointed by the NewYork court, andtijat the partnership affairs of Wyatt Co; are still in the hands of the receiver there, and unsettled. But tbafoircumstance doesn,ot alter'theoase. The pendency of a prior suit, in another jurisdiction, is notabal' to a .subsequent suit in a oircuit court, even though the two suits are for the same cause of action. Stanton v. Embrey, 93 U. S. 554, and authorities there cited. In this action the plaintiffs do not seek to subject the property in the hands of thereceiver appointed by t'heNew York state court to their claim, and, of course, could not do so if they The sole object of the action here the indebtedness to judgment. As said by Chief Justice WAITE in, the s,omewhat analogouBcase of ParsoWl v. Railroad Co., 1 Hugpes,279: '''Itwill be time enough to consider how he [the plaintiff] can teach any portion of the property involved in the litigation pendin the sta,tecourt, for the purpose of subjecting it to the payment of his'judgment, when he attempts to do so." , As has been seen, while the plaititiffs have sued both of the joint ligors, service of process has only been, and could only be, had on one of them. This fact would be good ground for a plea in abatement, aocording to the principles of the common law; but the common-law rule in that regard has been changed by statute in this state,-;lection 414 oHhe Code of Civil Procedure of California providing that, "when the action is, against two or more defendants, jointly or severally liable on a contract, and the summons is served'on one or more, but not on all, of thein, the plaintiff may proceed against the defendants served, in the same manner as' if they were the only'defendants." Demurrer sustained.
UNITE]): 'STATES 'fl. SOUTHERN PA,q..B. CO·
. , UNITED STATES tI. SOUTHERN PAC.
R. CO. et ale
(C-£rcuU OO'Ulrt, S. D. OaUjornia. November 22,1889.)
A demlirrer to a bill, which goes to matter comprising a part of facts which constitute II; good cause ofactionj as well as of facts·whWh.are bl.sufficient to consti· tute a .caulI8 of action, is properly overruled.
In Equity. On motions to modify orderovetTuling a demurrer, (39 Fed. Rep. 132,) and to file So second amended bill. . W. H. H. Miller, Atty. Gen., and Joseph H. Call, Special Asst, U. S. Atty,. . Joseph D. Redding and Oreed Ha'Jl'1MT&d, for. defendant the. Southern Railroad Company. Ross, J. Two motiona have been made, argued, and submitted in this case,-one on behalf of the Southern Pacific Railroo.dOompany, that the order made and entered on the 27th day of May, 1889,(39 Fed. Rep. 132,) overruling the demurrers theretofore filed to the amended bill of complaint, be so modified as to sustain the demurrer filed by said company to the said amended bill; and the other is a motion on behalf of the government to file a second amended bill in cases numbered 67, 68, and 69, respectivelY,.,which cases, subsequent to the submission of the aforesaid demurrers,Were consolidated by ll.n order entered by consent of all of the parties in interest. The ground of the first-mentioned motion is that the demurrer filed by the defendant railroad company only went to that portion of the amended bill as to which the court held no cause of action was stated. If that was all, undoubtedly the proper order,so far as that demurrer was concerned, would have been one sustaining it. But while the court held that the grant to the Atlantic & Pacific Railroad Company conferred upon that company noright of any nature to any particular piece of land within the indemnity limits of that grant prior to its selectipn, and, as a consequence, that the fact that lands were within such indemnity limits did not exclude them from the subsequent grant to the Southern Pacific Railroad Company, and that patents issued to the latter company were not for that reason invalid, yet, because the amended bill on its face showed that the lands in controversy were at the time of the grant to the defendant railroad company claimed to be within the limits of a certain named Mexican grant, which latter grant was then sub judice, and because of that provision of the grant to the Southern Pacific Company to the effect that if the route it was authorized to designate should be found to be upon the line of any other railroad route to aid in the construction of which lands had been theretoforegranted by the United States, as far as the routes are. upon the same general line, the amount of land theretofore granted should be deducted from the amount granted by the act in question, coupled with the alleged facts regarding the latter matter, the amended bill was con·