6 F. 599 | U.S. Cir. Ct. | 1881
The bill in this case alleges that complainants are owners of a certain patent in relation to improvements in induction-coil apparatus; that the defendant is infringing their said patent, and prays for an injunction and for damages. The bill was filed September 27, 1880, and on the same day a subpoena in chancery was issued to the marshal of said district, who returns that he served the same in Eoss county, Ohio, by delivering a copy of it to the mayor and clerk of the city of Chillicothe. The subjimna required the defendant to appear by the first Monday in November. On the first Monday of November the defendant, by its attorneys, Banning & Davidson, entered its appearance in the cause. On the fourth day of December, on motion of defendant, leave was given to answer by the first Monday of February. On the twenty-first day of February, 1881, on motion of defendant, leave was given to answer in 20 days; and on the eighteenth day of March, 1881, the defendant filed itsjnotion to dismiss, as follows: “Now comes the defendant, the City of Chillicothe, by its counsel, and moves the court to dismiss the bill herein filed, for want of jurisdiction, the defendant being a resident of the eastern division of the southern district of Ohio, and not found or served in the western division herein.” On the fourth of February, 1880, an act was passed by congress dividing the southern district of Ohio into two divisions, to be known as the eastern and western divisions; Eoss county, in which the city of Chillicothe, the defendant, is, being in the eastern division. This act provides that “all suits not of a local nature, in the circuit and district courts, against a single defendant, inhabitant of said state, must be brought in the division of the district where he resides.” Under this provision it is clear that this suit should have been brought in the eastern division, and not in this, and if the defendant had entered its appearance for the purpose only of moving to dismiss the suit, the motion would have been granted; but the appearance was the general appearance of the party. Not only
This case is clearly distinguishable from the cases referred to by the learned counsel for the defendant, which hold that consent cannot confer jurisdiction, and that objections to the jurisdiction may bo taken at any stage of the case. In those cases either the subject-matter or the citizenship, which was essential to give jurisdiction, did not exist; but in this case the only question is as to the place where tho jurisdiction shall be exercised.
In Gracie v. Palmer, 8 Wheat. 699, the suit was brought in the state of Pennsylvania, and none of the defendants were citizens of that state, and Mr. Webster objected to the jurisdiction because it did not appear that the defendants were inhabitants of, or found in the district in which suit was brought, at the time of the service of the writ, as required by the eleventh section of the judiciary act of 1789. Chief Justice Marshall, in delivering the opinion of the court, stated
In Ex parte Schollenberger, 96 U. S. 369, Chief Justice Waite says: “The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented.”
These authorities show very clearly, I think, that the defendants might waive the right to have this suit brought in the eastern district, and that by entering its general appearance in the cause, and its several applications for further time in which to answer, I hold that it has waived its right, in this case, to except to the jurisdiction of the court; the motion will, therefore, be overruled.