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 .
for want of jurisdiction. The fact that it maintains an office and an agent ;in. lthisstate for the transactitm :Qf ita businEll:ls does not, as cOU tended, amount to a waiver 'of its.;I)ig4t, under the act of March 3, 1887, to be sued in the district of its residence, or in the district where the plaintiff resides; 'A,witiver of such right will only be implied from some act done in this very case, as by appearing generally and pleading to the q;lidoipg Sonte .other equivalent act. , i$' true, a,s has Been , under the judiciary act of March 3,'1875, and,under previ 'Clll$.:a;9ts, it was held that a corporation maintaining an agent RJ;ld trans'acting business ina foreign state might be there sued in the federal courtsbfprocess served on its agent,especially laws of the foreign state,.sanctioned such- service. But those decisionll, were predicated on ',the. that the jUqicia;ry acts then in force defendant to be · sued,notonly. in the district of which he was an. inhabitant, ,butjl,lso in any district "in which he was found at the time of serving .the writ." The theory was that a corporation might be found, within the meaning of the statute, in a foreign' Eltatei,1Vhe:re'ft'kept an 'agent and'offiea 'and transacted business, although II'Ot il citiieil or resident of such state. · Good Hope Co. v. Fenci'flg 00., 22 Fed. Rep. 635j :St 'Lbuis Wire M11J/Oo. v. Barb- Wire Co., 32 Fed. Rep. 802. The act of March 3, 1887, unlike -all previous acts on. the subject,requires suits, to'bebrohght agaimst a. ··defel'ldantin the district df the residence of the plaintiff or detendant, when',l'jutisdiction is dependent on diverse citizenship. ''l'he decisions cited are, for that reason, not applicable. ' They. do not establish .that ·the'@hio·corporation,by openingl1n 'offiCe in this state, has waived 'its in. Ii suit like the present, to be sued only in the district :where it i orlhe plaintifl' resides. ' <l!nnor v.. Rauwa:y 00.,36 Fed. Rep, 273 .. Inasmuch as the privilege asserted by the Ohio corporation is a per'so11a1 privilege that can 'be asserted· by it only,and'as .the court· clearly has jurisdictiOn of the·:suit as between the plaintiff and' the ·oitizenof MisSouri, the m()tion by'the lust-named defendant will be overruled, although'the motion' of the Ohio corporation is sustained. !twill then be optional with the'plaintiff to discontinue his Buit, or procetld against . Rosenbaum' alone.
R. Co. et al. v.
VAL. R. Co. et al.
In a proper a oourt :0.1, eqUity, the possession by a. receiyer of the of .an lnsolvent 'r&llway company, may mllke an inte,locutoryorder for , the sale of the. pro'!>ertybefore the rights of the patti6$ under lIeveral mortgages . ','I been fully ascertaine4 and determined. , '$; S4ME-DISCHARGE 011' MORTGA.GE NOT SET DUE. . ,, , Butiri this olass of Ci&Eies a court of eqliitywiU never make such interloclltorj6r. der for an ilale terms. disohtrging .the lien of a D.qtyet due, unlesl\ it appears, ,only that 1ll tlle end there. mus.t be a sale of tp.e property. but,. tIiOseterms.· , . " ' ! -