164 F.2d 208 | 6th Cir. | 1947
In our original opinion in this case, reported at 6 Cir., 161 F.2d 956, to which reference is made for a statement of the facts, we held that the venue of the action, controlled by Section 51 of the Judicial Code, 28 U.S.C.A. § 112, was improper and that the ruling in Neirbo Com
Appellee further contends that the Court erred in holding that the rule in the Neirbo case did not apply because it was restricted to cases involving diversity of citizenship. It relies upon Oklahoma Packing Company v. Oklahoma Gas & Electric Company, 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 537, in support of this contention. Although diversity of citizenship existed in that case, jurisdiction was based upon the fact that the suit was one arising under the Constitution of the United States. In that case the Circuit Court of Appeals held that the defendant corporation “by complying with the provisions of Oklahoma law respecting the domestication of foreign corporations, waived its right to object to the venue of the court and consented to be sued in the District Court of the United States for the Western District of Oklahoma” 10 Cir., 100 F.2d 770, at page 775. This ruling was affirmed by the Supreme Court. The case involved a construction of the effect of the broad provisions of the Oklahoma statute which provided that every foreign corporation in order to be authorized to transact
Appellee’s petition for rehearing will be overruled.
Judge Simons is of the opinion that the petition for rehearing should be granted and the decree below affirmed on the authority of Oklahoma Packing Company v. Oklahoma Gas & Electric Company, 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 537. He sees no substantial difference between the Oklahoma and Michigan Statutes.