73 FEDERAL REPORTER.
·of .ascertaining ;whether. the company has filed the required stipulation, and -otherwise complied with the statute. The receipt of the premium,and the .execution and delivery of the.policy by the company, are equivalent to an as-sertion by the company that it has complied with the 'requirements of the statutes to entitle it to do business in this state: and. as between the assured and the company, the latter is estopped, upon the soundest principles of the law and morals; to say that it has not done so. That the stipulation was not in fact filed with the auditor is of no consequence, if the company has done those things which imposed upon it the obligation and duty to file it. 'l'he law deduces the agreement on· the part of the company to answer in the courts of -this state, on service made upon the auditor, from the fact of its doing business in the .state; and the presumption, from that fact, of assent to service in the mode prescribed by the statute, is conclusive, and no averment or evidence to the contrary is admissible to defeat the jurisdiction. The reason of this rule is that the obligation to file the stipulation is imposed for the protection of the citizen dealing with the company, and when by its own act its obligation to file the stipulation is perfect, as between the company and the citizen, the com· pany will not be perniitted to relieve itself from a liability which the written stipulation would have imposed, pleading its own fraud on the law of the -state and her citizens. In such cases the law conclusively presumes that to have been done which law and and the rights of the parties contracting with the compnny, required to be done. It is a familiar principle that juris-diction cannot be acquired by fraud, nor ean it be evaded by such a fraud as is here attempted to be set up. The maxim that no man shall take advantage of his own wrong is as applicable to corporations as to natural persons, and applies as well to the kind of agreement under consideration as to any other. Insurance companies incorporated by the laws of one state lmve no -absolute right to do business in another state, without the consent, express or implied, of the latter state. This consent may be given on such terms as the state may think fit to impose, and these conditions are binding on the company, and effect will be given to them in the courts of all the states and the United States. Insurance Co. v. F'rench, 18 How. 404; Paul v. Virginia, 8 Wall. 168. 'One of these conditions may be that it shall consent to be sued there. If it do business there, it will be presumed to have assented, and will be bound ac-cordingly.' Railroad Co. v. Harris, 12 Wall. 65."
It necessarily follows, therefore, that service, as stated in the judgment record in evidence, upon the superintendent of the insurance department of Missouri, gave the court which rendered judgment jurisdiction therein over the defendant, and that the judgment is valid. I find that plaintiff is herein entitled to recover from the defendant herein the sum of $5,225, with interest thereon from November 25, A. D. 1893, at the rate of 6 per cent., and the costs of this action; and judgment is ordered accordingly, this judgment to draw interest at the rate of 6 per cent. per annum until paid. -The clerk will compute the amount, and enter judgment accordingly, and notify counsel of record herein of the same. To all of which defendant duly excepts, and is given 60 days from entry of judgmeDt within which to have signed and filed bill of exceptions.
JONES v. RO'VLEY. (CirCUit Court, S. D. California. March 22, 1800.) No. 664. 1.
PI,EADING-FoLLOWING l::!l'ATE RULES-PLEA IN ABATEMENT.
Though a defendant be permitted by the state practice and rules of pleading, adopted by the federal courts, in accordance with Rev. St. § 914, to
JONES V. ROWJ.EY.
unite a plea to the juristliction of the court with pleas to the merits, he' need not necessarily do so, but he may and the better practice oruinarily is to present his objections to the jurisdiction, before pleading to the merits; and the fact that snch a plea is called a "plea in abatement," though properly designated, nnder the state practice, as an "answer," Is no reason for striking It out.
/:lAME-DENIAL OF'DA)[AGE-JUDGMENT ON THE PLEADINGS.
A denial, in a plea in an action to recover l:lllu, of the allegations in the' complaint of the amount of damages caused to the plaintiff by being deprived of the land, and of the alIlount of the rents and profits, is sufficient of itself to defeat a lIIotion for judgment on the pleadings in such action. 'Vhether, when a plaintiff snes for a large tract of land, and the defendant is in possession of and claims only an inconsiderable part thereof, and disclaims as to the rest, the amount in dispute is the value of the whole tract, '01' only of the part claimed by defendant, qurere.
FEDERAL COURTS-JURISDICTION-AMOUNT IN
Motion to Strike Out Plea, and for Judgment on the Pleadings. Tanner & Taft, for plaintiff. Thos. R. Owen, for defendant. WELLBORN, District Judge. This action is brought to recover possession of certain real estate described in the complaint, and the sum of $1,000, damages alleged to have been sustained by the plaintiff through the act of the defendant in withholding possession of said'land, and the further sum of $500, rents, issues, and profits of said property. The complaint alleges that the matter in controversy exceeds the sum of $2,000. Defendant has filed what he calls a "plea in abatement," in which it is alleged, that "the matter in controversv in this action does not exceed the value of two thousand dollars;;; that, of the land sued for, defendant is in possession of only 50 acres, whose vallle does not exceed $10 per acre; and that he disclaims all right, title, or interest to or in the balance of said land;. and that the damages for withholding possession of said land, and the rents, issues, and profits thereof, do not exceed the SUIll of $L Plaintiff moves to strike out said plea, on the ground that the same is not authorized by law, and also moves for judgment on the pleadings, on the ground that said plea presents no issuable fact, and the time for answer has expired. These two motions wiII be considered in the order in which they have been stated. 1. Plaintiff's argument in support of his motion to strike out is that by section 422, Code Civ. Proc. CaL, made applicable, by section 914,. Rev. St. U. S., to the federal courts in this district, a plea in abatement is not authorized, but that the matters which, at common law, would be thus properly presented, must, under said section, be set forth by way of answer. This contention, I think, is untenable. That a defendant may plead to the jurisdiction of the court does not admit of question; and the fact that he calls his pleading "a plea in abatement," instead of an answer, as, perhaps, strictly speaking, would be the appropriate designation, under the state practice of California, is no ground for striking out the pleading. \Vhere objections are offered to the jurisdiction of the court, the better pl'actiee, for obvious reasons, is to determine such objections before the trial upon the merits, although, since the act of congress approved
73 ]'EDERAL REPORTER.
June 1, 1872 (17 Stat. 197), carried into the Revised Statutes as section 914, conforming the rules of pleading, etc., in actions at common law, in the courts of the. United States, to those prevailing in the courts of the several states, objections to the jurisdiction of the court and matters in defense of the cause of action may be united in the same answer. Roberts v. Lewis, 144 U. S. '653-658, 12 Sup. Ct.781. In that case, the court, among other things, says:
"Doubtless, so long as the rules of pleading in the courts of the United States remained as at common law, the requisite citizenship of the parties, if duly alleged or apparent in the declaration, could not be denied by the defendant, except by plea in abatement, and was admitted by pleading to the merits of the action. Sheppard v. Graves, 14 How. 505. But since 1872, when congress assimilated the rules of pleading, practice, and forms and modes of procedure in actions at law in the courts of the United States to those prevailing in tlIe courts of the several states, all defenses were open to a defendant in the circuit court of the United States, under any form of plea, answer, or demurrer, which would have been open to him under like pleading in the courts of the state within which the circuit court is held. Act June 1, 1872, c. 255, § 5 (17 Stat. 197); Rev. St. § 914; Bank v. Lowery, 93 U. S. 72; Glenn v. Sumner, 132 U. S. 152, 10 Sup. Ct. 41; Central Transp. Co. v. Pullman Palace Cal' Co., 139 U. S. 24,39,40,11 Sup. Ct. 47i:i."
The court then proceeds to hold that, according to the Code of Nebraska, diverse citizenship of the parties may be put in issue by a general denial. Such I understand to be also the rule under the California practice. The. case of Sheppard v. Graves, 14 How, 505, lengthily quoted from by the defendant, was decided in 1852, and hence the disapproval, there expressed, of uniting pleas in abatement with pleas to the merits, has not, since the act of 1872, above mentioned, been of controlling influence in those districts where, according to the state law, matters in abatement and to the merits may be joined in the same answer. 'Vhile a defendant, however, is permitted to thus present the issue of jurisdiction, he need not necessarily do so, but may and the better practice ordinarily is to present such questions preliminarily. The motion to strike out is denied. 2. The other motion-that is, the motion for judgment on the pleadings-raises the question as to the sufficiency of said plea. Among the material parts of the complaint are the allegations that the plaintiff, by being deprived of the possession of his land, has been damaged $1,000, and that the value of the rents, issues, and profits of said land, since he has been excluded therefrom, is $500. The plea, besides its jurisdictional allegations, avers that said damages and rents, issues, and profits do not exceed $1. These averments are equivalent to denials of plaintiff's allegations of the amount of his damages, and the value of the rents, issues, and profits of the: land. As to these matters, therefore, the plea is, in substance, a plea to the merits; and the fact that it bears an erroneous appellation, and may be otherwise inartificially drawn, does not destroy its substantial character. With reference to the jurhdictional allegations, it may be well to observe now, without, however, determining its sufficiency, that the plea seems to be approved by numerous authorities. Simon v. House, 46 Fed. 317; Greene v. City of Tacoma, 53 Fed. 562; Hilton v. Dickinson,108 U. S. 174, 2 Sup. Ct. 424; B,ailway Co. v. Smith, 135
U. S. 195, 10 Sup. Ct. 728; Grant v. McKee, 1 Pet. 248; Kanouse v. Martin, 15 How. 208; Maxwell v. Railway Co., 34 Fed. 290. Nor is there anything to the contrary in the quotation which plaintiff makes from Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 13 Sup. Ct. 416, as follows:
"In short, the fact of a valid defense to a cause of action, although apparent on the face of the petition, does not diminish the amount that is claimed, nor determine what is the matter in dispute; for who can say, in advance, that that defense will be presented by the defendant, or, if presented, sustained by the court."
In the case at bar, if the defendant asserted title to all the land sued for, and was in possession of the same, then the whole of said property would unquestionably be the matter in dispute, even though the defense should be adjudicated valid; and this illustrates the meaning of the quotation. But where the plaintiff sues for a large tract of land, and the defendant is in possession of and claims only an inconsiderable part thereof, it may well be doubted if his disclaimer, as to the balance, is such "a valid defense to a cause of action" as that referred to by Judge Brewer in said quotation. "Whether that part of the plea, however, which goes to the jurisdiction of the court, is good or bad,-that is, whether the matter in dispute is the whole of the land sued for, or only that part to which the defendant alleges and may prove his claim and possession to be limited,-it is unnecessary now to decide, since the plea must be held good in the particulars above indicated, namely, its denials of the amount of damages, and value of rents, issues, and profits. Motion for judgment on the pleadings denied.
UNITED STATES v. REID. <District Court, W. D. Michigan.)
VIOLATION OF POSTAl. LAWS-OBSCENE MATTER-INDICnIENT-SCIENTER.
An indictment charging that defendant did "unlawfully and knowingly deposit" certain newspapers in the mails, "each then and there containing, amongst other things, a certain obscene," etc., printed article, is insufficient to charge knowledge of the offensive character of the publication, when this objection is taken on motion to quash before trial, though the defect would probably be regarded as waived after verdict.
If the indictment omits to set out the offensive matter, on the ground that it is unfit to be spread upon the record, there must be such other allegations as will identify the subject-matter of the charge; and, where the objectionable matter was contained in a newspaper, it is not enough to aver that defendant was publisher of a newspaper named, and did deposit "certain newspapers, to wit, two thousand printed newspapers," without further identifying them by name, date, or otherwise.
SAME-AVERMENTS IDENTIFYING THE OB.JECTIONABLE MATTER.
Whether the statute includes those publications which are simply filthy and vulgar, qUtere.
This was an indictment against Edwy C. Reid for mailing obscene matter, founded upon Rev. St. § 3893, as amended by section 2, Act Sept. 26, 1888. Heard on moticn to quash. v.73F.no.2-19