120 F. 550 | U.S. Circuit Court for the District of Georgia | 1903
The petition in this case recites that on the-day of July, 1900, the plaintiff was the owner of a trotting
Replying to this declaration, the defendant has filed several defenses. One of these, filed on the 1st of April, 1901, was a motion to dismiss the plaintiff’s petition because the court had no jurisdiction of the alleged cause of action; there was no legal process for the reason that it was directed to the marshal, who was also the plaintiff, and no legal service because this was effected by the marshal or his deputy, of the name of Hoss; the alleged agent was not a proper party on whom to make service; the defendant was not an inhabitant nor found and served in the district, and, if liable at all, is suable in the federal courts only, at the place of its domicile and residence, which is alleged to be in New York City; there is no cause of action; and because the acts set out in the petition were not the proximate cause of the alleged injury. A demurrer was filed on the same day setting out substantially the same grounds, or some of them, and no other grounds than those recited in the motion to dismiss. On the 5th of April, the defendant filed an answer, in which each paragraph of the plaintiff’s declaration is answered in apt averments of defense, and many of them denied. And on the same day the defendant filed what is termed an amended demurrer. This question has been argued pro and con with abundant citation of authority, which manifests the acumen and research of the opposing counsel. The only question of difficulty arises upon the allegation of improper service.
It is urged that the court has no jurisdiction, but this contention seems untenable. The defendant corporation is a citizen of New York, and carries on its business in the Southern District of Georgia, and, it has been long settled, may be sued here by a citizen of Georgia who resides in that district. In the case of Southern Pacific Company v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942, it was held that a citizen of Texas who resided in the Eastern District thereof could not maintain a suit in the Western District against a Kentucky corporation, although the latter was carrying on its business in the Western District, the court declaring that the corporation “could not be compelled' to answer to an action at law in the Circuit Court of the United States, except either in the state of Kentucky, in which it was incorporated, or in the Eastern District of Texas, in which the plaintiff, a citizen of Texas, resided.” This decision was made necessary by the act of 1887 (Act March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 507]), which annulled the alternative, permitted in the earlier acts, of suing a person in the district “in which he shall be found.” The plaintiff here resides, and the defendant carries on its business, in the Southern District of Georgia, in the Nprtheastern Division thereof, and in the county
“In all suits brought under the provisions of this section, service shall be effected upon such telegraph company by leaving a copy of the writ with the agent of the company if any, if no such agent should be in the county, then at the agency or place of doing business,” etc.
A similar provision (Code, § 1899) provides for service in the same manner upon any corporation doing business in this state. Here, also, the amount in controversy exceeds $2,000, exclusive of interest and costs.
Whether or not the plaintiff has a good cause of action against the defendant seems peculiarly a question for a jury. If, as alleged, plaintiff was made, by the publicity negligently given to his telegram, to appear as willing to accept from a purchaser $1,000 less than the sum for which the horse had been offered, the purchaser not understanding the arrangement as to commissions between the plaintiff and the horse broker, it may be that the jury will find such negligence as would support a’ right of action, if damage is shown. It has been held that, where the testimony of a physician tends to show that a surgical operation might have been avoided had he reached the patient earlier, it is not error to submit to the jury the question as to whether or not the failure of the telegraph company to properly transmit a message whereby the physician was prevented from earlier attendance was the proximate cause of the injury resulting from such operation. Western Union Telegraph Company v. Morris, 28 C. C. A. 56, 83 Fed. 992. The nature of the telegram indicated its importance. If a telegram has enough upon its face to show that it relates to the value of property offered for sale, it would seem sufficient to put the company on its guard against errors in transmission. Western Union Telegraph Co. v. Landis (Pa.) 12 Atl. 467. Nor does the telegraph company apparently perform its duty when the message is transmitted over a telephone line to a point within the accustomed circle of its delivery. The sender and the addressee of a message is entitled to the written copy of the message. Brashears v. Western Union Telegraph Company, 45 Mo. App. 433. See, also, Western Union Telegraph Company v. Fatman, 73 Ga. 285, 54 Am. Rep. 877. There are many similar precedents, but these will suffice" to indicate that the plaintiff’s declaration presents a case for submission to a jury.
The remaining question, as stated, relates to the validity of service. Rev. St. § 922 [U. S. Comp. St. 1901, p. 686] which is the twenty-eighth section of the act of September 24, 1789, provides that in all cases—
“When the marshal or his deputy is a party in any cause, the writs and precepts therein shall be directed to such disinterested person, as the court, or any justice or judge thereof may appoint, and the person so appointed may execute and return the same.”
The object of this enactment is manifest. It is to make sure that a marshal or deputy interested cannot by a false return deprive the
“The right of the defendant to insist upon the objection to the illegality of service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, » * * nor, when that motion was overruled, by their answering for him to the merits of the action. Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity; nor is the objection waived when, being urged, it is overruled and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contestation. It is only where he pleads to the merits in the first instance without insisting upon the illegality that the objection is deemed to be waived.”
Construing this declaration, together in its entirety, we conclude that by the words, “insisting upon the illegality,” the court imports that the defendant must not only file his objection to the service, but urge it and have a decision before he answers over. This, as stated, was not done in this case. Of course, these authorities would not apply to a case where the objection was a want of jurisdiction of the person or of the subject-matter. So clearly is this distinction outlined that the Supreme Court, in Toland v. Sprague, 12 Pet. 300, 9 L. Ed. 1093, held that a party against whose property a foreign attachment has issued in the Circuit Court of the United States, although the Circuit Court had no right to issue such attachment, having appeared and pleaded to the issue, cannot afterwards deny the jurisdiction of the court. This is a leading case, and has been cited in many cases. Irvine v. Lowry, 14 Pet. 299, 10 L. Ed. 462; St. Louis Railway Co. v. McBride, 141 U. S. 131, 11 Sup. Ct. 982, 35 L. Ed. 659; Interior Co. v. Gibney, 160 U. S. 220, 16 Sup. Ct. 272, 40 L. Ed. 401. In the case last cited it was held that the defendant, having appeared and pleaded to the merits, thereby waived his right to challenge the court’s jurisdiction on the ground that action had been brought in the wrong district. Many other cases might be cited. In the extensive discussion of this topic in that useful publication, the Encyclopaedia of Pleading and Practice, vol. 2, pp. 632-648, inc., it is announced that procuring a consent to a continuance, filing a demurrer or any pleading to the merits, or attacking plaintiff’s case in
The application of the eminent counsel for the defendant to withdraw his demurrer, and answer now of file, could only serve to delay the trial of the case on the merits. This it is the duty of the court to avoid. Indeed, it is ever the duty of the court intrusted with the administration of justice between contending parties to exercise its discretion and all of its ascertained powers to bring the parties to have-the cause speedily determined on the merits. With this general purpose, and for the reasons here stated, the motion to dismiss- and the demurrers are overruled and denied.