BANK OF WINONA V. AVERY.
81 ale
BANK OF WINONA V. AVERY et
3.1887. Where the jurisdiction is founded only on the fact that the action is between citizeos of different states, suit may be brought in the district of the residence of either the plaintiff or defendant.
(Byllabu 8 b1/ the Oourt.)
On Motlon to Dismiss. W. V. Sullivan, for plaintiff. CalJwun & Green, for defendants. HILL, J. The question now presented for decision arises upon dejurisdiction, as profendant's motion to dismiss the snit, for want vided in the first section of the act of congress, approved March, 3, 1887, amending:the .act of 1875, in relation. to the jurisdiction of the circuit and district courts of the United States as to the district in which suits shall be brought,which section reads as follows as towhei'e suits shall ba'ot-ought:' "No person shall be arrested in one district for trial in another,inany civil .action before a circuit or district court, and no civil suit shall be brought before eithefof said conrts,against any persl'>n, by any original process or proceeding, in any other district, than that whereof, he· is an inhabitant;· ,but where the jurisdiction is founded only on the fact that the action is between citizens of different states, ;suits shall be only in the district of the residence of the plaintiff or defendant. ,) ,The plaintiff in this action is a citizen and resident of this district, and the, defendants are citizens and residents of the state of Lo\1isiana, but sued in this district. This provision of this section has not yet been construed by the supreme court of the United States, which, when done, will settle the question for all the courts. I am not aware 'of but two decisions of the circuit courts of the United States. so far undertaking to construe this provision, of this section,-the first of which is, the case of Yuba Cb. v. Minitng Cb., 32 Fed. Rep. 183. The opinion in this case waS delivered by Judge SAWYER, circuit judge, and concurred in by Justice FIELD, of the supreme court, and Judge SABIN, district judge of California, holding that under this provision of this section of the act of March 3, 1887, suit can only be lJrought in the district of the residence (jf the defendant. The other case is that of Fale.s v. Railway Co., 32 Fed. Rep. 673) decided by Judge SHIRAS, district judge of Iowa, in the circuit court of the Northern district of Iowa. The high .,Iegard 1 entertain for the judicial opinions of the judges who decided the ,case in California, would cause me to hesitate long before coming tor a conclusion (jiffering fromthem, were it not that I am satisfied they over.looked the last clause of this portion of this section, which, it appears to me,co.ntains an exqeption, or modification, of the first clause, where founded. upon the fact that parties are citizens v.34F.no.2-6
FEDERAl. REPORTER.
of different states; it'is either this, or the last clause is without meaning, and we are not to presume that congress would- put in a statute a clause without intending to mean something by it. The argument in the opinion o{Judge SHIRASi in'the Iowa case, which'reviews the decision in the California case, is soconclusive, to my mind, that suit may be brought in tlie district of thetesidence of either the plaintiff or defend,ant, when the,jurisdiction is only founded upon .the citizenship of parties to the action, that I do'nCltbelieve it can be successfully controverted, and therefore feel constrained to adopt this construction of this provision of the act of 1887. The result is that the defendants' motion to dismiss the cause must be overruled·
.
,
EvERHARTet
m.
t7. EVERHART.
(Ol1'cult Oourt, 8. D.MiI'iuippi,
w: D. ,
February 10,1888.) '
A suit to annul a will, ,nnd to restrnin the enforcement of a decree admittin'g' it to' pl:b'baie, is in essential'Particularsn suit in equity, and if by the law obtaining 'in thesta.te, oustomary or statutory, such a suit can ,be maintained in oourts, whntever dellignntionthat oourt by originnl pr,ocess in the (lircuit court of the may bear, it m",y be United Stntes,if the Parties nte' citiZens of different states, nnd the nmoutl't in controver,sy issutllcielitto give circuit c()'urt of the United States jurisI di,ction , ,:
'
the "
,2., SA){E. , Jurisdiction as to willa, and their probate aa such, is De1t.her included nor excet>Uid out of the grant of judicial powers to the coUrts of the United States. So 'far is e:llparle,nnd is not,oonferred,ajJ,dit qe by them,. at all, a lalY oJ; in equity 'its exercise becolJl.es necessaryto a controversy of whlCha court of the United 8tatesmllY take cognizance by reason of thecitiZllllship of the parties. 8, ,WILLS-VALIDITY AND By stMutes of the state. o! 'lYill, t(> pnss title torlfalestnte to the deVIsee, must be made In, wrltmg, and SIgned by the testntor or testatrix. or oy' some other person iIi. bis or her,presence. and by'his 'Or her express and sUbs<;rib,ed,bythe testMor or testadirection, and, if not w.\l.olly , . trix, it be attested by two. Qr more credible witnesses, in the presence of . , the testator or testMrix. , , . '. (Syllabus by tM 'Oourt.) ,I ",' , ", " ',' '" ' ' " , , "
InEquitY'. On demul'ter to bill. . Frank Joh1uJton and Ym'ger,for conlplainants. CalJWuln Green and McCabe A'(tder8on, fordefendant8.
. HrLI,, J.' The questions forde6isioli arise upOn the demurrer oUha defendant to complainants' bill,1\.1ld, by request of both
'parte eViderlce of the subscribing witnesses exhibited'with'the paper writingpurporting to be the will of the' decedent,. exhibited with the bill. . The billln Buostance alleges 'that M.· Everhart died in ISBllquena county
parties, upon the sufficiency ofthe proof to establish the will upon the ex
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