'O'HARROW
v.
HENDERSON.
769
Q'HARROW
HENDERSON
'et al.
(C1Ircuit Court, D. Ind:tana. Ootober 10, 1892.)
No. 7,958. RBMOVAL OJ!' CAUSES-JOINT DEFENDANTS-SEPAlUBLE CONTROVERSY.
An action for wrongful arrest and imprisonment and for malicious prosecution, instituted in a state court against two defendants jointly, cannot be removed by either into the federal court, under Act March 8, 1875, § 2, upon the ground of a separate controversy; and the fact that the defendant seeking removal has filed separate defe,nses doea not make allch cause of action aeparable.
At Law. Action by John W. Q'Hurrow against John W. Henderson and the Adams Express Company. On motion to remand. Granted. Statement by BAKER, District Judge: On the 1st day of April, 1885, the plaintiff, O'Harrow, filed his complaint in two paragraphs in the superiotcourt or Marion county, Ind., against the defendant Henderson and the express company. The first paragraph is for the recovery of damages for wrongful arrest and imprisonment withppt warrant or process of law. The second is Jor malicious prosecution. On the 17th day of April, 1885, the defendant the Adams Express Company filed its motion in writing to quash the return, of service of pr0gess upon it, which was overruled by the court. On the 17th day of April, 1885, the defendant Henderson filed his separate answer in three paragraphs. .Two paragraphs were special, and one in denial. On the 30th day of April, 1885, the defendant Henderson filed his separate, verified petition, accompanied by a proper bond, praying for the removal of the cause from the state courtintotbis court. On the 2d day or May. 1885, the prayer of the petition was granted,and the said cauS$ was ordered to be transferred into·tbiscourt. The plaintiff moves to remand. Claypool &: Ketc1uJnn, for plaintiff. Baker &: Daniels, for defendants. BAKER, District Judge. (after stating the !acf8.) This is an action sounding in tort for wrongful arrest and im prisonment and for malicious prosecution. The wrongs are alleged to have been jointly committed by the defendants. The cause must be remanded. One of two or mote defendants, sued as joint wrongdoers, cannot remove such cause of action from a state court into the United States circuit court. It has often been deCided that an action brought in a state court against two, jointly, for a tort, cannot be removed by either of them into the circuit court of the United States, under Act March 3, 18'(5, c. 137, § 2, upon the ground of a separate controversy between the plaintiff and himself. The fact that the defendant asking the removal has filed separate defenses does not make the cause of action separable, although the plaintiff might have brought the action against either alone. Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Ander8on, 117 U. S. 275, 6 v.52F.no.9-49
F]l:J)ERAL' UPOR'l'ER ·. vol..
5.2.
Sup. Ct. Rep. 730; Plymouth Consolidated Gold Min. Co. v. Amador Jc S. Canal Co., 118 U. S.,,264,/6.Sup;:CDt..:Rep,L0-34jIHedge 00. v. Fuller, 122 U. S. 535, 7 Sup. Ct. Rep. 1265; Railroad 00. v. Wangelin, 132 U. S. 599, 10 Sup".Ot. ltep. 203. ,Remanded, by defendant.
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(OirCtUi'court, ''8·. b.' Odti/ornta. 'November '18,18112.) t:' ('''iiiW* " ": ntil.aer Al:t iAiug.l3;:.l88S,. (25.at. at'LargeJ p. :488,> .S l,-prov:iding tbat, "where' the; jurisdiotion is founded only all, the,flWt .1iJ,latthe&QUon.,i$ Pl'ltr:een .dif. ferent states, suit shall be brought only in the district 'of'th'e residence of'either ,: .deflnldan11,!' tbe'oil'oui,tcoun the SOllotbern distriot of California.has ,.)'1." of s11it by JI-.. ¥I.,SSOl1ri. an .. the latter was organized for the purposaof dOIIJg business in tha ::ilou1il1ern and-hp its prinoipaloftlce1Jb.ere. ;
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all, the meriia Wbuld notauthofuetlie nld be to give. jlll'iMi.otioD by consent 'in' a the/oourt. ,. .'; ,
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BOl3Jl,LlI>istri;qt Jlldgf),,., ...'This ill, f.lJ the suite for want ()f the ti}.ing,of anansweJ!1 to. the uierits, but be.. The.: the, jurisdiction 0(, the court. It is well settled that the circuit courts ha.Vano Jurisdiction eJt:" cept such as is' conferred by the cQl;lStitutaon aQd .laws of the United States, and that to bring a case withinitthejurisdicti()n must be affirmatively shown. The controversy between the parties to the present suit grows .and the, .asserted jurisdictiollof this court is , The complain.t ia"andat all.Q.xnes ther,eiJl, mentioned has· been, 'alleges a orgljJlizeQ,under.:t4e l!\ws. of stfl,te .of MissQuri. and a :having. it!l pritlcipal place ness Of state; thi\ttbe defendant. is. and at all the' mentioACild in been, a corporation dqlyorgap,illlilg.,.uDge:tj of Illinois, and a.citizeno.f business, however, at of of Cali{o;rnia f 4nd, is, and has been during thetintes qgmplaint, iJ;lh/l,bitant of of Los Angeles, tI;ltate of the was organized for the p'll,rpoae p(doh,lg, buSinlllSS in Los A»WEls city. the chief object of which wlUlf!.n«;l extenstqn,and operati9n of stree!:,car liqe1h
ST.
LlJUIS' R.CO.
V. PACIFIC RY; CO.
771
which purposes!-4vere'e'X!,l'essE!d in itsJ'Mticles 'of' inCOl'poration; that there is, and at tne. the has been, a, statute of the slate, pI Palitorpia provi<liog that. every corporatiQn.e.re-, after its passage:\bYI thela"1s ofiWyotheJilstate, anddoingbusi., ness in. the state of Galjfornia.., shall, dliysfrom the time of commencing to do businessiIl this state, designate .some person residingin the county in whicih the principal ofbusiness of such clorporation. in. the state of: Califorpia is, on\i'homprocess issued by' au· thority. of or under ani taw o( said liltate of California may be served; that said statute .further. prov:ides .that sQ,ch service shall be made on such person in such manner as shall be prescribed in case of service required to be made on foreigrl corporaHo l1s, and such service shall" be deemed to be a valid serVicej that the defendant' corporation did ,heretofore,pnrsuant to, this ,state statute, designate one ,John,'f., Aiklm,. who then was and since has been a person residing in the county of Los. Angeles, state of California, as a persouupon whom process issued by authorityof or under any law of the state of California may be served; and that the. defendant corporation has consented to be sued in this district, as a condition upon which it acquires the right to do businessjn the state of California. '. . In the case of Shaw y. Mining 00., 145 U. S. 444; 12 Sup. Ct. Rep. 935, the precise point adjudged was that under the act of March 3" 1887, (24 St. p. 552,) as amended by the act ofAugust 13, 1888, (25 St. p. 433,) fixing the jurisdiction of the circuit courts of the United States, a corporation incorporated in one state only cannot be compelled to answer in a circuit court of the United States held in another state, in', which it a usual place of business, to a civil AU it, at law or in equity I broQght by a citizen of a different state. But the sole reason why such a corporation cannot be compelled to answer to such a suit is because the court has no jUrisdiction over the parties. In that case, the supreme court, after referring to the judiciary act of September 24, 1789, and to the subsequent acts of congress in relation to the jurisdiction of the federal courts, including the act of March 3, 1887, as. amended by that of August 13, 1888, say: . "The act of 1887, both in its original form and 8S corrected in 1888, re-en· acts the rule that DO civil suit shall be brought against any person in any other district than that whereof he is an inhabitant, but omits the Clause allOWing a defendant to be sued in the district where he is found, and. adds this clause: · But, 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.' 24 St. p. 552; 25 St. p.434. As has been adjudged by this court, the last clause is by way of proviso to the next preceding clause, which forbids any suit to be brought in any other' district than that whereof' the defendant is an inhabitant; and the effect is that · where the jurisdiction is founded upon any of the causes mentioned in this section, except the citizenship of the parties, it ttl ust be brought in the district of which the deflmdant is an inhabitant; but, where the jurisdiction is founded solely upon the fact that the parties are citizens of different states, the suit may be brought in the district in which either the plaintitf or the defendant resides.' Machine 00. v; Walthers. 134U. S.
,lias
7,72,
FEDERAL REf'ORTER,
vol. 52.
41, 43, ·.llep. 485. general object of ,t.his act, as appeara upon its anijashas been by this,court, is to oontract,lIot to of the the {Jnlted States. .Smith v. Lyon, 188 lJ'. B. 815, 320, 10 Sup. Ct. Rep. 303; In 1'e Pennsyl'vama Co., 137 U. Sup.· Ct. Rep. HI': Fisk v. Henarle, 142 U. S. 459, 467, 12 sup.at.rBep.207. Astonatiural persona, therefore, it cannot be doubtedthllt,the,ffect of this act, r!ltld in the light ·of earlier acts upon the same of the judiciaJ construction thereof,is. that the phrase · district of. tll;8 residence of' 'a 'is equivalent to ·district whereof he is an inhabitant,' and cannot be ¢oIiiltruedas giving jmisdiction, by reuson of a circuitcourt'h,eId tn' 'a state of which neither party is a citizen. but, on the contrary, restlii4!tstlUi'jurisdiction to the district in which one of the parbies: resides, within tihe state of which he is a citizen; and that this act, tl,e;r\l(ore, having taken,l!JwRY the alternative permitted ill the earlieracts,of 8,WlJg ,I' person in · in which he shall be found,' requires jmisdictionof which is fo.unded only onits being between cjti"zens- df'mlferent'.states, t6 be brollght in the state of which one is a citizen, and hHlill'district,:t,hei'ein Of whfch he is an and resident. In the case()f·a 'Corporation:, the' reasons' are. to say the least, quite as strong for bolding! that dt:ean sue aOO be sued only in the state and district in Which it has of which the other party is a citizen. lit. lit, .in as alreacjy observed. has repealed the permission to adefendiui't in a district in which !:le is found, ,and has peremptorily enacted ,that., 'wheX;El tbejurisdiction. is founded. only on the fact that the acti6n is between· d,tiziln'S of different states, suit shall be bronght oillyintne dist·tllctofthe r8$idciJnce of either 'the plaintiff or t.he defendant:' as has :beenseen, this clause does' not aiwbich neither is a citizen. If conI ill; mlpd, there is no brQader, arti,ficial I pe.rsons;:,wh'Q \\Ierenot c l'1tElJ'nplated, than as to natural person's, who were. O If, as' it is more :reasonable'tO .did have'corporations in I mind" it must be pI'esumed'also,tohave1Md in mind the law,lllliong and ! formly that. ,within the meaning of tbeprevious acts . gjving jurisdi<1tio1l;of citizens ofq.;ifferent states., a not ,citiZen or a resident 0(\1 in which it llad 'l': ., :;:' ':.:Incorporated.'.' i"..... not . , ,; I ,,", i '. ' : "',,' 'I
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to:theifacts of the present case, it is obvious that this court has no ofthe parties to the sait\ because neither is ,a of. ; N0-J: is ,either a resident of this district orof this state. ..In Shaw v. Mining 00., supra, the court·citewith approval thepreviouBdases of v. Francis, 11 Wall. 210, and Ex Sch.dUenb U.',8,' 'In, the foriller case tpe court said: (." A' have qo of the. sovereignty by it was placef>f is tbere, ana can be.llOwhere 8186.: its domicile at will, and, rit way be permitted where its charter does not on that /ACIluire a residence there."
er.iJF',99
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residence or its citizenship. It can have its legal home only at the place wbeve itis located by or under the authority of its charter; but it ma.y by itsl'gentll transact business anywhere, unless prohibited by its or excluded by local laws."
ELECTROLIBRATION CO. 11. JACKSON.
773
To make applicable the rule that the right to be sued in a particular district is a mere privilege, which may be waived by plea to the merits, the parties and subject of controversy must be within the general jurisdiction of the court as defined by the statute. To apply that rule to a case not within such general jurisdiction would be to affirm that consent can give jurisdiction, which manifestly cannot be done. The motion to dismiss the suit for want of jurisdiction must be granted, and it is so ordered.
ELECI'ROLIBRATION
Co.
V. JACKSON.
(Cflrcuit Oourt, W. D. Tennessee.
September 20, 1892.)
No. 444.
L
EQUITY l'RAOTICE-DEHURRER-SETTING II'OR ARGUMENT.
The failure of the plaintiff to set down a demurrer for argument on the rule day, when the same is flled, or On the next succeeding rule day, (according to eqUity rule 38,) it having been the practice of the circuit court for the western district of Tennessee to treat all days in term time as rule days, is not, in that court, suftlcienJ; ground for dismissing the bill. A bill which describes an invention as "a certain new and useful apparatus, fully described in the --letters patent hereinafter mentioned and named therein, ·'a new and useful improvement in thermo-electric batt!lries,'" and then refers t6 the letters patent by their date only, without giving the number, and withont referring to any record in the patent oftlce, by book and page, does not describe the invention with suftlcient particularity.' And the fact that the letters patent were iiledona ,for preliminary injunction. and are before the court, will not cure the ,defect; they are not a part of the record. Wise v. Railroad Co., 33 Fed. Rep. 277, aild Postv. Hardware Vo., 25 Fed. Rep. 905, approved. '.' , ,
I.
l'ATENTS-l'L1UDING-SUII'II'ICIENCY 011' BILL-DESCRIPTION 011' l'ATENT.
.. EQutTY PLEADIlfG-SUFII'ICIENCY OF' BILL-ExHIBITS.
The rule a bill in equity contain !l clear and explicit descT!ption, sufficient to'glve the defendant nobce of the SUbJect-matter of the complamt bim, is not abrogated by equity rule 26, whioh forbids. unnecessary recitals of doeuments; and, if exhibits are attached, the bill should contain explicit reference to them. ,,'
In Equity. Suit by the Electrolibration Company against John A. Jackson for infringement of patent. On demurrer to the bill.. Sustained. B.M. Estes, for complainant. Cooper & Pierson, for defendant. HAMMOND, District Judge. The demurrer, and the arguments upon it, present questions of technical nicety not often raised in these days of loose practice. Wehave a very elaborate code of some 90 or more rules of equity practice, promulgated by the supreme court under its powers in that behalf, intended to regulate with uniformity the practice in all the equity courts of the United States. Except in a general way, very Uttle attention has been paid to them, and I doubt if any case can be found in any of the courts where they have been scrupulously and exactly enforced, or where they have been even nearly followed. Be-