FRIEZEN V. ALLEMANIA FIRE INS. CO.
849
,
himself as a man of intelligence should have done, you will say he is at fault, and, being at fault, he is not entitled to recover.» I can but think that, t!iking the instructions as a whole, the matter was fairly and fully left to the jury, and that they were not misled as to the true rule oflaw. With regard to the last point made by counsel, the absence of important testimony, I appreciate fully the rule that they lay down, that the discretion of the court should be exercised wherever it is apparent that, without fault or misconduct of either party, the full facts have not been presented to the jury; and I have considered with care the testimony which they say could have been presented by this absent witness. I do not think it would have affected in the slightest degree the question of contributory negligence of the plaintiff, which to my mind is the pivotal question; and, while it may throw some doubts upon the question ofthe negligence of the compaily, I do not think it such that a jury 'Would certainly or ought to have found the company free from negligellce.'Under these circumstances, I do not think, although the amount'is not such as permits a review by an appellate court, that I would be justified in setting aside the verdict, and Bubmittingthe question to a new jury. The motion for a new trial will be overruled.
FRIEZEN 11. ALLEMANI.A. FIRE
INs. Co.
COirlYUit Oourt, lv. D. Wi8conain
May 13, 1886.}
1.
, Rev. St. Wis. § 2637, subd. 11, provides that service of process "can be made ,upon a foreign corporation only, either when it has property within the state, or the cause of action exists in favor of a resident of the state. " Hetd, in an action brought in that state, against such a corporation, it is not necessary that the existence of some one of these facts should be alleged in the .,petition to give the court jurisdiction, and the failure to make such allega, tion does not render the petition demurrable. APPEARAJWE-GENERAJ..-EFFECT OF-TRANSITORY ACTION.
AGAINST-PLEADING.
2.
, 8.
Where an action which is transitory, and of which any court in wh'ich it Was brought would acquire jurisdiction of the subject-matter, is instituted in a: court of general jurisdiction, and the defendant enters his general appearance,and files a demurrer to the petition, he cannot afterwards object that the court has no jurisdiction of his pel'00U on account of defective service of process.
REMOVAL OF CAUSES-OBJECTION TO JURISDICTION-WANT OF SERVICE.
Where the defendant in an action brought in the state court has been properly served'with process, and he afterwards removes tb,e case to the federal court under the provisions of the removal act of March 3, 1875, he cannot object that the· federal court has no jurisdiction of his person because he has not been served with process in the federal district to which the suit has been removed, although service in that district would have been necessary had the suit originally, been brought there.
At Law.
Motion to strike out demurrer as ,frivolous.
,FEDE:8AL
·.
11. l:1tewn,s
¥qrri8, for
for
..
BUNN:,.J. ' This action was, begun hythe plaintjifin Circuit court of upon a polioy'of fireinsll,rance upon property helonging to the plaintiff, at Glyndon. in the state of Minnesota; against the defendant, a oorporation organized and existing under the laws ofPennsyIvania,and a citizen of that state. The com plaint sets forth a loss of the property by fire, and claims judgment for $1,200, the amount ,of the insurance. , The summons and complaint were served by the ,sheriff of Milwaukee county uponA.13. Myers, thedefendant'l.'I agent doing business as such ,at the city of Milwaukee, on February 24, 1886., The defendant thereafter, on the'second of March, by its attorneys, Stevens & Morris, served a general notice of appearance in the action, and afterwards put in a demurrer to the complaint On several grounds: (1) That the court has no jurisdiction either of the person of the defendant or the subject of the action; and (2) that the complaint does not state/acts sufficient to constitute a cause of action. After the putting in of this demurrer the defendant took the necessary steps. to remove the cause into this court, obtained a removal, and had the cause docketed here. The plaintiff now moves to strike out the demurrer as frivolous. The defendant's counsel make no point against the complaint under the second cause of demurrer, that no cause of action is stated, but urge the one going to the jurisdiction of the court, and insist that neither the state court nor this court gets any jurisdiction in the case because of the statute prescribing the method of service upon foreign corporations. Chapter 120, ltev. St. Wis. § 2637, provides the method of service upon corporations, both domestic and foreign. Subdivision 9 provides for the method of, service upon insurance corporations not organized under the laws of Wisconsin. Subdivision 11 provides for service upon any other foreign corporation. And then, in the same subdivision, comes this provision: "But such service can be made upon a foreign corporation only either when it has property within the state, or the cause of action arose therein, or the cause of action exists in favor of a resident of the state. " . Defendant's counsel urge that under this provision the state court got no jurisdiction either of the person of the defendant or the subjectmatter of the suit, because, the cause of action arising in Minnesota, it does not appear on the face of the complaint either that the plaintiff is a resident of Wisconsin, or that the defendant has property within this state. But the true answer to this plea is: Pirst, these facts constitute nQ part of the plllinWf's cause of action, and are not necessary to give the court jurisdiction of the !mbject-matter of the action, and therefore .the omission to set them out in the complaint does not render it demurrable; and, second, allowing the service to have been insufficient to give the court jurisdiction of the person of the defendant, a general appearance in the action waived the defective service, and subjected the· de-
FRIEZEN ·iI. AI,LEMANIA FIRE .lNS. CO.
351
the court. if the defendant wished to obfendant to the ject to the sufficiency of the service, his proper course was to enter a ,special appearance for that purpose, and, move to have the suit dismissed. But counsel seem to assume' that there is a question of jurisdiction arising in tpecasethat,is not and cannot be waived by a general appearance, putting in a general demurrer,' and taking steps to remove the cause from the state to the fed:eral court. But there ieclearl) no ground for such an objection to the jurisdiction of the court, either the state court or this court., The action is transitory in its character, and may be brought in any court of general original jurisdiction in matters at commonlaw ",hen ,proper service can be had upon the defendant. It will happen that there is a practical difficulty in getting service upon a foreign corporation so as to subject it to the jurisdiction of the cQurt.; but, allowing p.roper service, there can be no doubt about t}1ejurisdiction of the state court in a case of this kind, supposing the pWutifC to a citizen of Minnesota,. as the defendant alleges in its. affidavit for removal. The circuit court of Dane county is a court of general original jurisdiction in matters arising at law or in equity, without regard to or citizenship of the parties. In local actions it would not have Jurisdiction, unless the subject of the action were situate within But in transitory actions which follow the person, and may be brought in any state where the parties happen tobe, and where proper serviceC8Jil be had l or property of the defendant found, the court has unrestricted, jurisdiction of the subject-matter. In such cases the difficulty;ifan.y will generally relate to question of proper service; andlthink that is the only question that could have been raised ;here. If the defendant could have shown by affidavit that the plaintiff was a, citizen of Minnesotll, f;l.nd that the defendant had no property in this state, he probably,coold have got the case dismissed on motion by apMarj.ngllpecially for that purpose; it appearing by the complaint that 'thlUilause not arise in this state. But by entering a general appearance, and putting in a general demurrer, the defendant waived any defect in the service, and by proceeding to remove the case to this court it submits itself to the jurisdiction of the court in a cljSe standing ' as this does. There can be no question that this court has jurisdiction of the action. It .presents It contrQversy between citizens of different states, within the provision' oftbeact :ofcongress of March 3, 1875. As an original action, it could not have been brought in this court, and service made in Milwaukee, which is in another district. But no question of the suit being in the proper district can be made now, after the defendant itself nasbrottght the. case here by removal, as in so doing it submits itself, so, far as any question of jurisdiction over the person is concerned, to the jurisdiction of this court. ' See Jdhmton v. ,Trade Ins. Co., 132 Mass. 432; "ClayPire Ins. Co. v. Huron Salt &; Co., 31 Mich. 346; Mohr « Mohr DistillirttJ Co. v. Jiumrance Cos., 12 Fed. Rep. 474; Car8tairs v. MeIcooniis'&Traders'Ins. Co;, 13 Fed. Rep. 823; De:nnick v. Railroad Co" " I ,
352 I
. FEDERAL REPORTER.
l03U. $. 11; Edwards v. Oonnedicut Hut. Ins. Co., 20 Fed. Rep. 452; Oongarv. Galena & a. R. 00.,17 Wis. 477; Upper M1,8sissippi Tra.n¥J.Oo. v. Whittaker,. 16 Wis. 220.. '.' · . Thede,murrer will be stricken out, and the defendant given 2.odaY\!l' . time .,to.answer the conwla,int, upon condition of waiving service of no. tice(>f trial, or accepting short notice of trial, for the term of court to open on the first Monday. in June.
FRIEZEN 'II. ALLEMANIA FIRE
INS. Co.
(Olrcuit. (Jourt,
w:
D. WiBconsin. 1887.)
INsuRANClIl-FmE-AoTrON ON POLIOY....;.Sn:: MONTHS' LnrrrATION-hOl[ WIlAT DATE REOKONED. '. . .
.A policy of fire insurance. provided that an action to recover upon the policy fot a loss should be commenced within six months after the fire occurred, and also,that arbitrators should be aPfointed to ascertain the amount of loss, be prougllt unti they had made. an award, and nothing should be due and payable under the policy until 60 days after the completion of allthe requirements of the policy. Held, these provisions should be construed together, and the six-months limitation be.reckoned, not from the occurrence of .the fire, but from the expiration of the 60 days, when the loss was due and payable.. Under any other construction the insured's right of action might be barred before ithad accrued. ..
all
SAME-:.INTEREST-ALIENATION-"SALlll, TRANSFER, OR OONVEYANOE"-MoRT' GAGE... .' ....
.T he pOlicy also provided that "the interest of the insured is the entire, unconditional, and sole· ownership of the property, 'and that the poJlcy shall become void by the sale or transfer, or any change in title or possession, of the, propel!ty, insured. whether by legal process or judicial decree, or voluntary transfer or conveyance," etc. At the time the policy was issued there was an outstanding mortgage on the property, and the insured, after receiving the policy, 'executed another mortgage upon it. Held, neither of these voluntary 8ale, transfer, or convellance of the property within mortgages the meaning of the policy, nor did either have the effect to vitiate the policy; especiall'''as'the insured was asked no questions as to any outstanding mort· gage, and made no agreement as to future ones. '
At Law. . H. W.· dhynoweth, for plaintiff. Stevem & MorriJJ, for defendant. BUNN, J. This is an action brought to recovera Joss under a. policy of insurance against fire issued by the defendant company to one C. Friezen, and afterwards duly assigned to the plaintiff. A jury was waived by the parties in writing, and the case tried before the court. The facts are stipulated, and are as follows: . The insurance company have had an agElnt in Wisconsin, located at Milwaukee, since 1880. The policy was duly issued by the defendant company on April 8, 1885, by which they insured the said C. Friezen against loss by fire upon his twostory frame hotel building and addition, situate in Glyndon, Minnesota, and the furniture therein, in the sum of$1,200. Eight hundred dollars of
