ooNSOLIDATED STORE-SERVICE CO. fl. LAMSON CONSOLo S. S. 00.
CoNSOLIDATED STORE-SERVICE CO. 11. LAMSON SERVICE CO.
Marcn 25, 1890.)
Com'ORATIONB-'SUIT IN FOREIGN STATE-J"URISDIOTION OIl FEDERA,L COURTS.
24 St. U. S. 1159, which provides that no civil suit shall be brought in the federal courts against any person "in any other district than that Whereof he is an inhabitant, » does not oust said courts of jurisdiction of a .suit against a foreign corpora. \ion which has agreed, as a condition of the right to transact business in the state, to submit, to be sued there, since the right given by the statute ill a personal exemption, which may be waived.
In Equity. On motion to dismiss. G1usten Browne and Rodney Lund, for complainant. Benjamin F. Thurston and M. B. Philipp, for defendant.
CoLT, J. A motion has· been filed by the defendant to dismiss this case for want of jurisdiction. The bill as amended alleges that the plaintiff corporation was organized under the laws of the state of Maine, and that the defendant corporation was created under the laws of the state of New Jersey, and has .its office and principal place of business in Boston, Mass., and that it has appointed, in writing, the commissioner of corporations for .said commonwealth and his successor in office its true and lawful attorney, upon whom any process in any action or proceeding may be served, and in such writing agreed that any lawful process against it served upon said attorney should be of .1J1e same legal force and validity as if served upon said company, in accordance with chapter 330 of the Acts of the Legislature of said commonwealth in the year 1884. The law of Massachusetts provides, as a .conditionprecedent to a foreign corporation undertaking to establish in business in the commonwealth, that it shall make the commissioner of corporations of Massachusetts. ita attorney for the purpose of its subjection to proCess. The agreement entered into by the defendant corporation says: -"To be the. true and lawful attorney of said corporation ill and for the said commonwealth, upon whom all the lawful processes in any action or proceeding said corporation in said commonwealth may be served in like manner, and With the same efiect as if said corporation existed therein: and the said corporation hereby stipulates and agrees that any lawful process against said corporation which Is served on its said attorney shall be of. the same legal force and Validity as if served on said corporation." For the privilege of doing business in Massachusetts the defendant corporation made and filed an agreement as above provided. The question which is presented by this motion is whether the courts of the United States can enforce this agreement in view of the act of March 3, 1887,(24 St. 552,) which provides that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant." This act omitted the clause contained in the act of March 3, 1875, folv.41F.no.14-53
lowing the word "inhabitant," "or in which he shall be round at the time of serving suoh prOCeSEI' or.oomm'encing such proceeding;" that is, under the act of 1887, excepting in cases where jurisdiction is founded solely on the fact of diverse citizenship, suit must be brought in the district of which the defenda:nt is' ali·'inhabitant. It is conceded '. that under the old law,the court would have jurisdiction in this case, but it is insisted that,,,hU,e:.B:Mrporation.maY¥fPtind iIi a foreign. state, itcan.not be-' come an. inhabitan.t of 8uchstate; The questiol;l of where a party may be ,is in..the n.ature of $1:' exemption. and, may be wai lithe court.hasjurisdiction"by. of the requisite,citizenship of the parties, a defendant may consent to be sued anywhere. In the language of Chief Justice WAITE, in Ex parte Schellenberger, 96 U. S. 369: ., The act of congress prescribi.?g place where apers9n may be sued is not one affecting the of the courts: It is. rather in the nature of a personal exemption in favol' of a defendant, and it is one which he ma.y waive. If the citizenship of the parties is sufficient, a defendant may conseilt aIlywbere ,and certainly jurisdiction will not pe ousted bec8usehe has consented." . . . . It is strongly'urged that While 8 defendant corporation may con.sent to be found in aforeign state, it cannot COllsen.t to be an inhabitan.t. of t;l1ot state for the purpose :ofallOWling suit to be brought against it. I canuot admit' the force oHhis argument. If the' qu,estion of where a party may be, suea is not a jurisdiction.al fact, like the requisite citizenship of the-parties, I do'not see why a corporati6Jl'Cannot as well con'" sent to be considered an inhabitant of a foreign sta(e 10r the purpose ·of serving process' upon it 8$' conaentt<> be 10nnd within. a foreign state for' '',If'acorpor8tion cannot migrate, a's is well settled; it is in the nature a legal fiction to saY-it can consent to be found and sued. iha'foteign';state,'and it is only & legal fiction of the same character to bOld that it'tnay "consent tobecoine an in.habitarit ofil."foreign state. I think, however; the true groundupollwhich the 'court should take jurisdiction is this:' that the tsto be liUed as a condi-, tion fordoing-businesswitbin stich"state, and that it should' be held to its The important considerntion, therefore, is the assent of tl'le' bOtporatioD, and not whether it is actually found pr becomes an' in.-· such ,state. ' As th,e a pe sued may: case that the, de,: b.ewaived, itis,npt necessarY.¥i>r. .u.s.t9. qecide fe&dant corporation is an inhabitant'oLMssaachuBetts, but the question; is, has it consented· to- be sued there, and so waived' any' personal exemp.: tiqniQ its favor?I think of the supreme court. suppprts tPis In Railwl),y.Oo.
:' ,"It [a corporatl&nJ cannot migrate, blitthay exercise -its anthority In a foreignterritory upon, such conditionsasmaybepl'escribed by the la'wof the plaoe.",' One of these eon4l1itionsmaybe that It shall consent to be sued there. It it do business it. willbll, pl'flsumed to 8/ld will be bound. aecordingly. II< .. II< We, no doubttllat. it made the company liable to suit . where !luit :was brought. in all respects as if it had, been an independent corporatioll or the same ,
SAULT ·StE.'M: LAND
language cjted with" approval by the court in Railway 00.. v. 13 Wall. 270. After referring to the above cases in Ex parte SchoUenberger, Chief Justice WAITE, speaking for the court, says: .. Applying these principles to the present case, there cannot be any doubt, as it seems to us, of the jurisdiction of the circuit court Over these defendant companies. They have in express terms, in consideration of a grant of the privilege of doing business within the state, agreed that they rnll.ybe sued there; that is to say, that they may be found there for the purposes of the service otprQC88S issued 'byaDy' of the commonwealth baving jurisdiotion of the SUbject-matter: .This was a condition, imposed by the state. upon the prlvnegegtanted, and it was Dot nnreas-onable. Lafayette 00. v. French, 18 How. 404. It was insisted in argumentthatthe statute confines the right of suit to the courts of the state; but we'cannot sOcoDstrue it. There is nothing to manifest such an In lAfayettelns. 00. \T. French, 18 How. 404, a corporation chartered by the state ofIndiana was allowed by a law of Ohio to' transact business there,uphn condition that service of process upon the agent of 'the corporation should be considered as service upon the. corporation, and it was held that when the company sent its agent into Ohio it must be presumed to have assented .to the rule; and Mr. Justice CURTIS, speaking for the court, says: "WEl'hold such a judgment, recovered after such such, notice, to be as valid as if the corporation had had its habitat within the state." 'When the defendant corporation, desiring to transact busiDesS in Mtlssachusetts.agreed, as a condition precedent, that it would submit to'tlll lawful process in the manner required by the lawapplica.ble to foreign corporations enjoying such a privilege, and that suchserv'; ice should have the same effect as if the corporation existed' therein, it bound itself to submit to be sued within the state the same al!l if'it was a corporation organized under the laws of the state, and it should not be pennitted to deny in this court that which it has solemnly assented to. .It was decided in Ex purte 8ehoUenberger that such a statute applied to the federal as well as the state courts. Without reviewing the con" fiicting decisions in sevaralcircuit courts as to whether a corporation under the act of March 3, 1887, can be sued in a foreign state, I shall hold that, upon the facts presented in this case, this court has jurisdiction. Motion to dismiss denied.
Sm.M. ,LAND &: IMP. Co.
(OircuU Oourt, W.D. Wisconsin. March 29,1890.)
VDDOBAND VBNDBIl-8PECIVIC PlmPOIWANcB OP CONTRAOT.
Defendants, who owned land in common with complainant, wrote the latter of. fering t(fbuyfor a certain price, and set out certain cash items paid by complainant, wbich they agreed to refund, and complainant answered, setting out additic;mal items paid by it, and saying that if the statement was as understood by defendants it would sel,l. Defendants replied, stating that such additl,·onalite,ms wer,e not preoper, but they thought the matter could be adjusted, and further stated thl\t they pected to buy another persoll's inte1'est in the land,.but were having diliiculty in