Elk Garden Co. v. T. W. Thayer Co.

May 10, 1910
Versions:
McDOWELL, District Judge.

This is an action of ejectment brought originally in this court to recover a tract of land lying in this district. The plaintiff is a New Jersey corporation, and the defendant is a New York corporation. In accordance with the state statute the declaration and notice were served in this district on an agent of the defendant who had been designated by the defendant under the state law as its agent for the service of process. The defendant appears specially for the purpose, and demurs to the declaration for want of jurisdiction.

1. Ejectment is a local action (5 Words and Phrases, 4202; 4 Minor’s Insts. [3d Ed.] 636), such as can be maintained only in the district where the land lies (Northern R. Co. v. R. Co., 15 How. 233, 242, 14 L. Ed. 674; Livingston v. Jefferson, Fed. Cas. No. 8,411; Newell, Ejectment; p. 101). The language of the eighth section of the judiciary act of March 3, 1875, c. 137, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513), as contrasted with that of the act of June 1, 1872, c, 255, *558-17 Stat, 198 and section 738, Rev. St., leaves, I think, no doubt as to the intent to include suits at law, as well as in equity, “to enforce a legal or equitable * * * claim to * * * real property within the district.” The act of 1872 read:

“That when in any suit in equity * * * to enforce any legal or equitable lien or claim against real or personal property. * * * ” Section 13.

In Rev. St. § 738, in both editions, the language is:

“When any defendant in a suit in equity to enforce any legal or equitable lien or claim * * * ”

In the act of 1875 the languagé is:

“That when in any suit, * * * to enforce. m * * ”

As was said in Crawford v. Burke, 195 U. S. 176, 190, 25 Sup. Ct. 9, 12 (49 L. Ed. 147):

“ * * * A change in phraseology creates a presumption of a change in intent.” '

The word “suit” is applicable to an action at law as well as to a proceeding in equity. 7 Words and Phrases, 6769. And that the word was thus used in the eighth section of the act of 1875 seems to follow from the lánguage of the first section of that act:

“That the circuit courts of the United States shall have original cognizance * * * of all suits of a civil nature at common law or in equity. * * * ”

Hence, if the defendant had not been found within the district, but had been served with a warning order outside the district, or had been advertised for, under the eighth section of the judiciary act of 1875 (4 Fed. Ann. St. 381 [U. S. Comp. St. 1901, p. 513]), there would seem to be no ground for objection to the jurisdiction based on the fact that neither.party is a resident of this district. Dick v. Foraker, 155 U. S. 404, 411, 15 Sup. Ct. 124, 39 L. Ed. 201; Greely v. Lowe, 155 U. S. 58, 15 Sup. Ct. 24, 39 L. Ed. 69. In the first mentioned of these cases, .■■it does not appear how the defendant was notified of the pendency of the suit. In view of what had been said in Greely v. Lowe, it seems highly probable that the defendant was served with the warning order outside of the district of suit,, or that the order had been published. -In the -case at bar the defendant- was “found” within this district. Railway Co. v. Harris, 12 Wall. 65, 81, 20 L. Ed. 354; Ex parte Schollenberg, 96 U. S. 369, 377, 24 L. Ed. 853; New England Co. v. Woodworth, 111 U. S. 138, 146, 4 Sup. Ct. 364, 28 L. Ed. 379; Southern Pac. R. Co. v. Denton, 146 U. S. 202, 207, 13 Sup. Ct. 44, 36 L. Ed. 942; In re Keasbey, 160 U. S. 221, 228, 16 Sup. Ct. 273, 40 L. Ed. 402; Spencer v. Stockyards Co. (C. C.) 56 Fed. 741.

In Greely v. Lowe, supra, 155 U. S. 74, 15 Sup. Ct. 28, 39 L. Ed. 69, it is said:

“ * * * .The entire object .of tbe section [eighth of the Act of 1875] is to call in defendants who. cannot be served within the district by reason of their absence or nonresidence.”

-«'-'And the eighth section of the act of 1875 in express terms applies ,.only,in case a defendant “shall not bé an inhabitant'cTf,' or foiind within, *559the said district.” Consequently jurisdiction of the case at bar is not given by the eighth section. If this had been a transitory action the fact that neither party is a resident of this district would be fatal to the jurisdiction. McCormick v. Walthers, 134 U. S. 41, 43, 10 Sup. Ct. 485, 33 L. Ed. 833; Shaw v. Quincy Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Southern Pacific R. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; In re Keasbey, 160 U. S. 221, 229, 16 Sup. Ct. 273, 40 L. Ed. 402; R. Co. v. James, 161 U. S. 545, 16 Sup. Ct. 621, 40 L. Ed. 802; R. Co. v. Allison, 190 U. S. 326, 23 Sup. Ct. 713, 47 L. Ed. 1078.

The first section of the judiciary act of 1875 as originally enacted contained this language:

“And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in, which he shall he found at the time of serving such process or commencing such proceeding, except as hereinafter provided.”

18 Stat. 470. As this part of this section was amended by the act of March 3, 1887 (c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508]. See, also, Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508]), it reads:

“ * * * And no civil suit shall be brought before either of said courts against any person 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, suit shall he brought only in the district of the residence of either the plaintiff or the defendant.”

The case at bar therefore presents a question which is worthy of at least some discussion. Confining our attention to a case where the sole plaintiff and sole defendant are citizens of different states, where neither is a resident of the district of suit, where the suit is strictly” local in character, and where the defendant can be and has been found within the district of suit, which is the district where the property lies, did Congress intend by the change in the first section of the judiciary act made in 1887 to deprive the circuit court of said district of jurisdiction? In Spencer v. Stockyards Co., supra (C. C.) 56 Fed. 741 (an action of ejectment), the facts were essentially the same as in the case at bar, and it was there held that the court had jurisdiction. And it seems to me that the conclusion there reached should be followed. In omitting the clause “or in which he shall be found,” and in providing that “suit shall be brought only in the district of the residence of either the plaintiff or the defendant,” Congress did not intend to forbid jurisdiction of local actions where neither party resides in the district of suit, and where the defendant is not found in the district. Dick v. Foraker and Greely v. Lowe, supra. It would therefore be so very anomalous to deny jurisdiction of a local suit to the federal court of the district where the property lies merely because the defendant is found and served with process in the district, that it seems proper to regard the amendment of 1887 as not intended to apply to local suits. The first dozen lines of the first section of the act of 1875 give the federal courts jurisdiction of all controversies of a civil nature, in*560volving over $2,000, -between citizens of different states. ■ The restrictions as to venue, as set out in the amendment of this section by the act of 1887, apply to transitory actions. But the very fact that the eighth section of the act of 1875 is expressly saved by the fifth section of the act of 1887, seems a sufficient reason for concluding that the restrictions as to venue do not apply to local actions. An intent to give jurisdiction of a local action where the nonresident defendant may be merely warned by publication, seems to clearly forbid the existence of an .intent to deny jurisdiction to the same court of the same action if the defendant is served with process within the jurisdiction.

It is true that the language used in the first paragraph of the opinion in Central Trust Co. v. McGeorge, 151 U. S. 129, 132, 14 Sup. Ct. 286 (38 L. Ed. 98), may seem to throw some doubt on the conclusion above stated. But the first paragraph of that opinion is of the nature of a dictum, as the point which had the full attention of the court was the waiver of objection to the venue. Moreover, that suit was evidently not regarded as one falling under the eighth section of the judiciary act. If the complainant had so docketed its judgment at law as to obtain a lien on the real estate of the defendant, the fact is not stated. The suit was apparently regarded as one brought to wind up the affairs of the corporation, by a judgment creditor whose .remedy at law was inadequate, as execution had been returned “nulla bona,” which should regularly (as per Judge Putnam, Hutchinson v. American Co. [C. C.] 104 Fed. 182) have been instituted in the district of the domicile of the defendant company. It was clearly not treated as a suit brought to enforce a lien upon or claim to property within the district of suit, and,is therefore not in point-as-respects the jurisdiction of a strictly local suit.

2. The declaration in this case-does not allege the value of ’the tract of land sued for. It concludes, “ * * * and still doth withhold said possession to the. damage of the plaintiff $5,000; and therefore the -plaintiff brings its suit.” Except where there is filed with the declaration (Code Va. 1904, § 2751) a statement of the damages which the plaintiff means to demand (“showing the specific grounds for the claim and the true nature thereof, so as to give the defendant reasonable notice of the extent and character of the claim”—Witten v. St. Clair, 27 W. Va. 766; 2 Barton Law Pr. 1148), the judgment in eject-.merit for a plaintiff is (Code Va. 1904, § 2750) that he “recover the possession of the premises.” In the case at bar it does not appear that there was filed any such statement of damages as is contemplated by section 2751. It follows that the claim of damages made in the declaration is an empty formality, and is not in any sense.the “matter in controversy.” Way v. Clay (C. C.) 140 Fed. 352, 353; Crawford v. Burnham, 1 Flip. 116, Fed. Cas. No. 3,366; Lanning v. Dolph, 4 Wash. C. C. 624, Fed. Cas. No. 8,073. And under these authorities the -fact -that the land described in the declaration and sued for is of .greater value than-$2,000 should be alleged in the declaration. ' In the -last-mentioned case Mr. 'Justice- Washington -asserts that it is quite as ess.enti.ai that the value of the. land sued for be.alleged in the declara*561tion in ejectment as that diversity of the citizenship of the parties be stated. See, also, Thomas v. Board of Trustees, 195 U. S. 207, 210, 25 Sup. Ct. 24, 49 L. Ed. 160. The demurrer should therefore be sustained, unless the plaintiff so amends the declaration as to allege that the land demanded is of a value in excess of $2,000.