THE WYANOKE. 1 BUCK
'V. THE WYANOKE.
s. D. Nw
York.' Maroh 15,1890.)
COW8ION-':'MuTUAL FAULT-LIllEL BY CARGO-OWNER-COSTS.
l,ng vessel joill,ed in her libel against the steamer, and both vessels were held in 'f$ult tor thecdllision, it was held that the defendantS should be adjudged to pay only one-half of,the oargo owner'S bill of oostjl, and that the latter must look to their co-libelants for indemnity against the other half. '
Where suit ,was brought against a steamer by the owners of a sailing vessel totally lost by collision with the steamer, and the owners of the carg-o lost wfth the saU-
In Admiralty. On appeal from taxation of costs. (hrter & Ledyard, for libelants. Biddle & ,Wa.rd, for claimants.
BROWN, J. Since the decision of Mr. Justice BLATCHFORD in the case .oCTILe Warren, 25 Fed. Rep. 782, it hIlS been the settled practice in this .c.ircuit to. f'pportionthecosts1).s, well as the damages when two vessels are held in fault in collision causes. In the present case the libelants inelude the 0,wners of the schooner Ruth Darling, which was totally .lost by the collision, as well as the <>wners of the cargo. Both vessels were found in fault,and the damageawere ordered to be divided between them. The value of the schooner being less, than the value of the cargo, her ownel'S are not entitled toany deoree against the Wyanoke, because one-half of ,her damages is less thanone--half of the value of the, cargo which she ,would be bound to, pay. The result, therefore, is that the owners of the cargo have a decree for their full damages the Wyanoke. They ,now claim, also, a full bi1l of costs against her, on the ground that they should not be placed in a worse' position than if they had filed an inde,pendent libel. Had the cargo owners filed a separate libel against the Wyanoke, the Ruth Darling or her owners, would naturally have been brought in 'as co-defendants, under the fifty-ninth rule. All parties would have,beeiibefore the court, as they are in the present action. Upon the apportionment afthe damages in such an action, the owners of the schooner;;upon any stipulation for costs,would have been bound to pay their share of the costs according to the terms of their stipulation. I see,l1O Teason for any different disposition of' the present case. The cargo owners may tax their ,full bill of costs, but. these costs, as well the claimant's costs, will be appol'tionedbetween the two vessels or their JOwnersjl1Jiatis,one-halfofthe whole costs mus,t, be charged in the de-cree against.the stipulation given by the plaintiff owners of the schoonert the other half paid by the claimants. The total loss of the Ruth Darl.ing.does not absolve her owners and their stipullJ,tors from their shal'6' of the costs imposed on the two vessels in their OWIl action, and the bilities aSRumed by their own stipulators. As respects the Wyanoke t the result is the same as if the owners of the schooner were s.ole libelants. As between the libelants themselves, the cargo owners must lci>ok to their co-libelants for their further indemnity.
by Edward G. Benedict, Esq., of the New York bal'.
BENSINGER SELF-ADDING CASH REGISTER
NATIONAL CASH R. co. _81
BENSINGER SELF-ADDING CASH REGISTER CO. v. NATIONAL CASH REGISTER Co. et al.
(C1trcuit Oourt, E. D. Missouri" E. D. :May 2, 1890.) L
A corporation does not acquire a residence in a state other than one in whicu it is incorporated by maintaining an ofllce and having an agent there, within the meaning of Act Congo March 3, 1887, which 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 district of the residence of either the plaintiff or the .defendant." Following Booth. v. Manufacturing Co., 40 Fed. Rep. 1. Where, on motion to dismiss for want of jurisdiction, it appears that the jurisdiction is dependent wholly on diverse citizenship, and that one of the defendants lives in the district where suit is brought, and the other defendant and the plaintift live in difterent districts, the action will be dismissed as to the non-resident. but not as t<il the resident, defendant.
On Motions to Dismiss for Want of Jurisdiction.
R. A. &:PaUl Bakewell, for plaintiff. Sale &: Sale, for defendants.
THAYER, J ·. The question raised by these motions has been foreclosed in this district by the decision of Justice BREWER, while circuit judge, in the cases of Booth v. Manufacturing Co., and Walker v. Railroad Co., 40 Fed. Rep. 1, and in Smith v. Lyon, 38 Fed. Rep. 54. The suit at bar is an action ex deluw by a corporation of Illinois, having its office in Chicago, against a corporation of Ohio, having its chief office at Dayton, Ohio,and against a of Missouri. The suit is one in which jurisdiction is dependent on diverse citirenship. The Ohio corporation, although it has an office and agent in this district for the transaction of its business, is not a resident of the district, within the meaning of the judiciary act of March 3, 1887, and cannot be sued in the federal court in this district, unless with its consent, by a corporation or citiren of Illinois. Booth v. Manufacturing Co., tmpra. Nor does the fact that a citiren of Missouri has been joined as a serve to extend the jurisdiction of the court over the Ohio corporation, as it was held in the case of Smith v. Lyon, supra, (and the decision in that case has sincebeenaffirmed by the supreme court of the United States, 133U. S. 315, 10 Sup. Ct.. Rep. 303,) that, when the ·first sertion of the act of March 3, 1887, speaks of suits being brought "only in the district ofthe residence of either. the plaintiff or the defendant," the words "plaintiff" and "defendant" are used in a collective sense, and include all who are plaintiffs or defendants, so that all parties on one or the other side of the contro. versy must be residents of the district to sustain the jurisdiction. The contention that the Ohio corporation has waived its right to object to the jurisdiction of the court is not tenable. Conceding that this is a case in which the corporation might by its acts submit itself to'the jurisdiction of the court, yetH clearly has not done so. The first step taken by it atterbeing served was to file the pres eAt to dismiss .