MEYER, tI. HERRERA.
OlrCW£t Court, W. D. Texas, San Antonw DWiBWn. December 81, 1889.)
Where the citizenship of the parties appears in the petition, defect of jurisdiction on that ground may be rai,sed by demurrer, in the absence of a general appearance.
SAllIE-SUITS AGAINST ALIENS.
Under Act Congo Aug. 13 1888, (25 St. at Large. 434,) which confers on the federal courts jurisdiction of suits between citizens of different states. or between citizens of a and foreign states. citizens, or subjects, but provides that no suit against any person shall be brought "in any other distIict than that whereof he is an inhabitant; but, where the jurisdiction is fQunded only on the fact that the action is be.tween citizens of different states, suit shall be Drought only in the district of the residence of the plaintifI or the defendant, It-the circuit court has no jurisdiction 01 an action by citizens of the district ag-ainst an alien temporarily in the district.
On Demurrer to Jurisdiction. Tarleton Keller, for plaintiffs. 08car Bergstrom, for defendant.
MAXEY, J. This is a suit instituted by the plaintiffs, who are citizens of Texas and residents of this district, against the defendant, a resident and citizen of the republic of Mexico, to recover damages in excei!8 of $2,000, for 'breach of contract. A demurrer is interposed to the petition, on the ground that the court has no jurisdiction over the perSOIl of the defimdant. The preliminary question, that the objection should be raised by plea in abatement, will be first disposed of. As pertinent to that issue, the petition alleges: "Said Albert Meyer is a resident citizen of the county of Bexar, and the said Charles W. Barnard is a resident citizen of the county of Uvalde, and state of Texas, and both within the jurisdiction of this court; and the said Julian F. Herrera is a resident and citizen of the repu blic of Mexico, but at present, of his own volition, and voluntarily, within the territorial jurisdiction of'this court, in the said connty of Bexar."
When the necessary facts appear upon the face of the petition, as in this the defect of jurisdiction, if any existing, may, in the absence of a general appearance, be reached by demurrer interposed specially for that purpose. Halstead v. Manning, 34 Fed. Rep. 565. And so it is held by the supreme court "The case is not one where a plea in abatement was required, to raise the question of citizenship. Here the citizenship of the parties is averred in the bill of complaint, and the consequent defect in the jurisdiction of the court is apparent; and a defect of this character, thus disclosed, may be reached on demurrer, or taken advantage of without demurrer, on motion, at any stage of the proceedings. A plea in abatement is required only when the citizenship averred is such as to support the jurisdiction of the court, and the def.. ndant desires to controvert the averment." Ooal. 00. v. Blatchford, 11 Wall. 177, 178. Whether the defendant is suable, over his protest, in this district, depends u,pon the con!'ltruction to be given the act of August 13,1&88·. v,41F.no.2--l>
The general jurisdiction of the circuit courts over suits of a civil nature at common law, involving arnounts.. in(excess of $2,000, where a citizen ·. But of a state is plaintiff and an alien is defendant, is the detendant appears, and says, in limine, that under the act"of congress he cannot be sued in this district his consent, anel submits that issue to the determination of .the court: It is thus evident there is no general appearance in the caiise, no voluntary.submissiori of the person to thejurisdiction of tpe,court, bpt a denial, in the first instance, of the right tOl>f(joeed with the cause on its' rnerits. , IOh¢sUit is properly brought in district, authority for it must be found in the first section of the act,'Wllich· provides-:"'rhattbe, circUit courts; of ,the United· States shaH hli.veorlginal cognizance;" concurrent with' tn'e Courts of 'the several states, of all'suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or valuEr of two,thousand dollars, lie lie '" in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusi'.:e of interest and costs, the SUill or value aforesaid; ... ... ... or a controversy between citizenlJ stll.te alldforeign or subjects,. in wh,ich the matter in dispute exceeds,exclnsive of interest and costs, thesuill or value "aforesaid. '" .... lie ·'And no .ciVil' suit shall' be 'brought before either' of said courts, agaiUllt· atryperson, by any original or proceeding, in any other district than that Whereof he is anillhabitant; but, where the jUrisdiction is only on .the fact that is between citizens of ditIerent states, suit shall be brought only in the district of the of either the plaintitIor the defendant.." 25 St. at Large, 434. ,.
, ' .. " i' " ·
The concJ}uding part of the section, as quoted above, regulating the venue of suits, may be divided into two distinct clauses: (1) Suits generally shall be broughV'in no other district than that whereof the deIs·an inhabitant;" (2) but where the jurisdiction is founded only on the fact that the action is between citizens of differentfltates, suit sh/l.llbe brought onlyJn the district of the residence of either the plaintiff or defendant. Now, the right to bring this ,suit in this district, cannot be maintained under the second clause, because the action is not oitizens of different states, unless the words"citizens of different states" .should be held to include citizens of a foreign state. But "the w(:ird'state' is used in constitutIon as designating a member of the U'nion," (Hepburn v.JJ:lkey, 2'Cranch, 453i) and a suit between an alien and a citizen of a state is not a suit between citizens of different states. ((Jpj,dahyv.McGeoch, 37 Fed. Rep. 1'; See,also, King v. 1 Sup. Ct. Walker .v. O'Ne:iJ)" 38 Fed. Rep. 374i Cooley' ... :Mc49"thur, 35 Fed. Rep. 372.) ,,' . , , . i(,The soooudclause, therefore, is without application to the. case at bar; aJjld, if the suit· be maintainable, it must be so by vittueof the provis()f the. first clause. zamb?'inov. Railway Co'" 38 Fed. Rep. 450. Under that, the suit is confined to the'district ohvhich the defendant is an inhabitant. The petition avers that the defendant is a resident' alld citizen of the republic of Mexico, "biitatpresent * * * > within the" terrItorial jurisdiction of this court, in the said county of Bexar,",
MEYER .t';HERRERA."·' -.
which is legally equivalent to the allegation, within the meaning of the act, that he is an inhabitant and. citizen of Mexico. : See Manufacturing Co. v. Manufacturing Co., 34 Fed. Rep. 818, 819; In re Wrigley, 8 Wend. 140; .Roosevelt v.:KeUogg, 20 Johns. 210; Bouv.'LawDict. tit. "Residence;" Walker v. O'Neill, 38 Fed. Rep. 376. Not being an inhabitant thE! district, he claims 4isexemptiop. from suit, and insists that the mere, fact of his being found here is not sufficient to confer jurisdiction. Thete. is 8,. marked difference between.the act of 1888 and the acts of 1875 and 1789, in respect otthe venue of suits, or ,elaceof suability. The act of 1875, a substantial of that of 1789, (Rev.' St. § 739,) provides that,"No shall be brought before eitper of said courts, against any person,'by'any origina1 process or proceeding, in any other district tbanthat Whereof he is an inhabitant, or in which he shall be found at the time of serving sllch process, or commencing such proceeding. " 18 St. at Large. 470. Jurisdiction of the suit, under the act of 1875, would have been beyond controversy; but the clause conferring.it under that act 'is not found in the statute of 1888. The material words, "or in which he shaUbe fQl,1.f1d at the time of serving such process or commencing such proceeding," are omitted from the last act, and those or equivalent words must be supplied in the present statute, in order to maintain the suit against this defendant. In other words, to hold the defendant to am swer and trjal in this case, the court must judicially legislate into the act ofAugust. 13, 1888, tlievery clause which the law-making power has deliherately legislated out of it. But legislation is no part of the functions of the judiciary, nor do the courts concern themselves about the motives of the legislature. Says the supreme oourt: "Ollrduty is to give effect to the will of the law-making power, when exwith:i,n the limits of the constitution." Barney v. Latham, 103 U. S. U.·S. v. Railroad 00.,!:11 U. S. 91. "And judicial duty is not less fitly performed by declining ungranted jnrisdiction than in exercising firmly that the constitution and laws confer." Ex parte McOardle, 7 Wall.
lam clearly of opinion that under the present law,where a suit is instituted . by a citizen of a state against an alien defendant, it must he brought iuihe district of which the defendant is an inhabitant, unless, if bronghtirianother district, the defendant voluntarily submits himself to the jurisdiction of the court. The 4emurrer to the jurisdiction will sustained. and an order entered disrbissing the suit. .
n'Auxy 11. PORTER et ale
(Circuit Ooun, D. OonnecUcut. January 18,1890.)
FBDBRAL COURTS-JURISDIOTION-NoN-RESIDENT PARTIES-PARTNERSHIP.
Rev. St. U. S. § 787,ghfing the circuit court jurisdiction of suits between parties properly before it,when.there are several defendants, some of whom are not inhabitantsof, nol' found within, the district, but providing that the judgment shall not prejudice the parties not served and not voluntarily appearing, does riot l'equlre a court to entertain jurisdiction of a bill for an account against three partners, two of who)D are non.residents,. were not served, and do not appeal'. They are parties of such importance that complete justice cannot be done without their presence. A complaint by an administratrix, shOWing hel' appointment in anothel' state, but averring none in the state in which the federal court in which suit is brought is sitting, is demurrable. " '
SAME-ACTION BY ADMINISTRATOR.
Action for account·. Alfred T. Ackert, for plaintiff. H. '0. & L. F. Robinson, for defendants.
SHIPMAN, J. This is an action of account by the plaintiff, as admin. istratrix of Robert Soutter, who was in his life-time a member of the firm of Soutter & Co., against his three surviving copartners. Porter, Fitzhugh, and W. K. Soutter, for an account of the copartnership transactions. ,The complaint lilleges that the complainant is a citizen of the state ofNew York, and that the defendant Porter iSR citizen of the state of Connecticut. The: citizenship of the other two defendants is riot averred, but it is admitted that they are citizens and residents of the state of New York. They were not served, and have not appeared. Porter was served. and haS appeared. The complaint alleges that the complainant was, by an order of the surrogate of the county of New York, duly appointed, and now is, administratrix of the estate of Robert Soutthe will annexed, and that neither of the defendants has ever a'ccolulted to the estate in respect of the said copartnership. The de-. Porter has qemurred to the complaint because it does !lot show that t,l;ie,requisite diverse. citizenship existed, and because it does show upoll .face that the l,Jornplainant is a foreign administratrix, and has not receiYellletters of administration from the proper courts of the state of Oonnecticut. . .. .. . . As it is admitted' that Fitzhugh and William K. Soutter are. and were at the commencement of the action, citizens of the state of New York, the suit is one in which citizens of that state are the plaintiff and two of the defendants, and a citizen of Connecticut is the third defendant. The action being one of accouni against three surviving partners, the New York defendants are necessary, and not merely nominal, parties, and are adverse in interest to the plaintiff. If there was nothing more in the case, it would be plain that the court was without jurisdiction. PfYfJer V. Fordyce, 119 U. S. 469, 7 Sup. Ct. Rep. 287; Walden v. Skinner, 101 U. S. 577; Barney v. Baltimore City, 6 Wall. 285. But it is claimed that the act of 1839 (now section 737 of the Revised Statutes)