THE GAZELLE.
801 .1
THE GAZELLE. L\NKLATERV. THE GA7.ELLE.
(Di8t'l'ict OOU'I"t, N. D. lilinoia. November28,1887.) 1 COLLISION-FAILURE TO MAKE LIGHT.
The J., a sailing yacht of ,about seven tons.· sloop-rigged" was coming through the south-east passage of the outer breakwater, at Chicago, at a speed of two and three-fourths miles, with a light south-west wind, when the pro· peller G.. bound for South Chi'cago, left her landing at the foot of Harrison street, and laid her course, at a speed of four and one-fourth miles, for the same passage. The J. carried but one light, a bright white one; but that was placed on her pawl-post, jUl:1t forward of her mast. whereit could,beplainly seen by any vessel approaching her from or.Jorw:ardnfeither quarter, The course of the two vessels was such as to Muse them each other sublltllDtially bows on;' When 600 feet apart, the light'wlLs plainly seen by passengers of the G.. which vessel was abouMhat time hailed by tlle J. ,The G. kept on with t!:le full vie'Y until bQt 200 feet lay beHveen her and the J. Her lookout then made the hght for the first time, andtlle wheel was at' once put to', port and the bell rung to stop and back.. -The J. was struck on the starboard quar·ter, and sun1¥'jbecom;ng a total wreck,,: Ileld, that the G. was altogether at fault in not havmg made the ligb,t of the J., until th'e collision was unavoidable. ',:
"
SAME:",-PLEASUltE YACHT--CuSTOMARY' LWHTS'7'""'REGULA'l'fONLIGlttt'i!.
o.
SAME-DAMAGES.'
The sunken vessel, which was a total loss. was nine years old" having been in the possession of the libelant about five years. She cost him $250, and he put $350 worth of repairs upon her. In addition. she, had $100 in personal property aboard when she was sunk. It was in evidence that a new yacht of the same size and rig could be built for $700. Held, damages should be awarded.
In Admiralty. Libel for damages. Schuyler Kremer, for libelant. R. Rae, for respondent. , BWDGETT, J. The libelant in this case seeks to recover the damages sustained by him as owner of the sailing yacht Josie, by reason of a collisionbetween the propellerGazelle and said yacht in ihe watersdf the Chicago outer harbor. The facts, as they appear in the case from ,the proof, are that the Gazelle was, during the summer season of 1886, employed as an excursion steamer in the Chicago harbor and vicinity, and hlld,been so engaged under the command of the same master for the two preceding seasons. 'The Josie was a sailing yacht of about seven tons measure. ment, and used by her owner in giving excursions; and taking out sailing parties upon the waters of the harbor and vicinity. The proof shows that a nUinber of sniling yachts similar to the
302 Josie had been employed in the same kind of business during the summer seasons for many years and waters of the Chicago harbor; and that such yachts, as a rule, carried a single white light at some point forward·:Of their foremast,soast()be clearly seen by other craft from a:neadoron either On the evening of July 6, the Gazelle'left the landing' at the footof Harrison street :witll a large pumber board for South Chicago orthat v,icinity, and, laid hef CO)lrse 'fot ttlesouth-east passage, through the outer breakwater. :The yacht Josie, had been out on the lake with a small p¢y, and, about the left the landing, the yacht was into'the basin of harbor through the south-east passage. The wind was from the south-west, and quite light, so that the Josie, south of the footof'Harrison,street,wasnQt:plllking:morethantwo and one-half to three inilesheadwayperhour.TlieGazelle was probably running, the for the south-east passage, at about four or four: and Qne-half miles hour. ThecQurse of the two vessels wa;Bsuch,ll,S, 'callse ,them approachMch othetsubstantially bows on. When from Mo to 300 yards aparl,'the master of the Josie, seeing the Gazelle ,WM·com.i.ng directly· towards him, hailed, the Gazelle so.loudl)" that the;pllssenge,s on her heard the they were going to that timetJ;1e, ligpt on: the Josie was plainly visible to the passengers on ,the promenade deck of No notice was by the of of hail, and lXla,de to change the ,course of the Gazelle, untIl, the two veSSelsfwere,probably, within less ,than 200 feet ofeaoh other, at which time,. ,of the Gazelle testified; his mate, who Wa.s acting as lookout, and who was standing on the hurricane deck in froiitof.the hisatteQtionto the light on arid the 'capP1in,on light! arxd"seeingthat it did not change position with w1l11( order'Eld. the'\vneel tope 'P,ut, to. port, and immeback. The veSlsels diately following that order'rang the bell to were then in too close proximity to prevent a collision, but,undoubt. edly, the headway of the Gazelle had been considerably checked; qecause she struck the Josie with only sufli6ientforce ,to break 'in her quarter; when, if she had been going lit the , offour and onehalf miles, it is probable that she would have 'gone directly' over 'lier. fEqeiJosie,sank.,withinOi few 'moments; and becam'$'a total wreck, the .fI.orount,ofwrecksgesavedfrom her selling for only aboul $15. : iflTW'o, defenses' are interposed: ,{l} That the officers of the Gazelle :moo:e:,guUty' of: no: negligen.ce,anddidallthey could, to avoid :the as sddnl1sthelighton the. J()sie was. discover.ed; (2): that,the.Josia :wasf not idarry,ingsuch lights· as are,;required by the ,sailing rules enacted the purp0S6 of. prev.enting collisions.' . : ·",As,to.the first point made; by ,defense, the:evidence seems. to .rn& bottcJusive, and overwhelming that,tbeJigbt from tQedeck of the visibleifromthe-:point,where, the. lookoutwns, standing,'a8 his staticm ,was .ra.vorable·.f()1T:the pgrpose'of: seeinglight.s.upon
per
303 the water as that of the promenade deck, when the vessels were at 600 feet apart, andthatherlight in sight, from both ·of the Gazelle up to the time of the. collision. The passengers upon the deck, who have testified inregal'dto the I):latter, say they the hail or.call from the deck of the Josie, and her light some, when she was 200 yards away, or 250 yards awaY;j ,others, when she was 100 yards awaYj others, when she was two or three blocks away,-the dif'ferelit estimates of the distance by the different witnesses arising from the fact :that each witness giveahis estimate of the. distance· the vessels were apal'tat the time he first the .on the JOl:\ie, and.1;leard the hail. ,It is hardly possible or probable that all these witneRses fr9W among the 'passengers· on the saw: the JOllie or her lights same: time. IUs clear'rhowever, that theyciid see ber lights, the hail, for: what might be· considered, tinder the some oonsidera;ble time before the light seen ,by the Or the ·becamse' the wheelsmao says he:received order to port, and, threw,the wheel over as quick as he foot on tqe' spoke to; hold.it there, and looked out; and then saw the splU'S 01 the Josie jqst abaft the flag-staff, and instantly afterwards the stop and reverse1:lells w;ererung, and ,then came the',oollision. It is clear: to my mind,from this mony, ;tbat:the Gazelle was not discoyere<liby the lOQkout or the captain until;they were so close to theJlilsie as to render the collision imminent, if not unavoidable; and it is equally cleat, fl10m thetestimpnY of oth;lili' ·witnesses, that a vigilant lOGkout upon the hurricane deck of the should and could have seen the light upon, the Je>sie. in ample .time, to have avoided acol!-ision.The proofshowS! that the Josie carrie<1,;a bright .white lightnpon ,her just forwlll1'd ;ofher mltst, theJ;osie l;>eing sloop-rigged,where it ,cQuld be plainly seen by lWY vesse}:aFIProRGlP,iug her Jrom directly ahead, or forward of either quarter. Tp,eproof shows that this light was seen by perSOQSllP?n the. shore ,nE;'ar from where the Gazelle stal1wd,and by thewltnesses! M:r. Mr,a. ·neaux at distances ·even ,estimateli ,saw the light from the. deck othe. Gazelle; ... 1 have ,tb;l»'ef,ore 'nodoubUhat, if the lookout .oithe Gazelle ,had done his duty;, aJ;ld :k!ept thevigwtwatch which< twas denianded under the could have seen, and would have seen, the Jpsie long before he did do so, and that.the collisioneould readily have been avoided if this loolfout had not.been negligent. The lookout has not beenproducedasa.wit,hess, and we have, therefore, no explanation from him asJo,why: ,he :)lid ;not see the J sooner. ' , .. . ." As to,thesecond point,'thatthe Josie was, not cll-rrying the ligqts;re'quired,by the sailing rules, the:proof shows that she was. not a,vessel OJ}rolled. and· registered Jar comnieree· under the navigation laws. ;$e ,United Staf.es. She was, of less than 10.tons 1;>urden.and .was only used ·as a yacht br ,hltrbor craftj and tpe proo£Spows tbatinthe Chioago har·vor· it ,had been the usage, for many years prior· to ,yachts ,of this description to carry a lightsucb as Was upon. the nig.ht in single white ,light forward of ..st, where it could:beseen fl"Qnl\',p,nypoint,fQrWAfd,ofberqQ.arter., !
FEDERAL REPORTER.
sh<)wsthat this basin and the adjacent waters on summer nights was sci to speak, with skiffs and sailing yachts carrying parties for pleas:the captain of the Gazelle; having 'had three seasons' experience running'upon these waters, must have known that he was in constant making the passage from the Harrison-street landing to either of the'passages through the breakwater, of colliding with some of these mhrierous craft. And he alsO, frOJ:n the testimony, must be charged with knowledge of the kind onights theycarried,as well as the necessity of keeping avigilantlookout for those lights; and it seems to me there can be tio' dhuht that,. with this knowledge, it is no excuse, for a collision like this, to say that the water-cra.ft run into or sunk had not the regrilIt£ioh;lights 'on board.' As already said, he knew what kind of lights this 'c1'ltes of vessels carried,al1dit 'was his- duty to look out for that kind .· The rule :t1'Jat keep outo! the 'way.-of a f'allmg vessel IS asapphcable, It seems to 'me, to a small yacht like this, as it would be tOB. larger vessel engaged in conimeTtle of pleasurej and 'hence it is no excuse fQr the negligence shbwftlby the officers in 'cha.tge of this vessel that she had not theregulllitioh' lights displayed. . IUtlderstand that since this accident the attention .of the board of inspectb:l'shasbeen called to· this matter, and an order has been promulgatedreqhiring craft of ·the character of theJosie to carry.side lights; arid T do .not intend to be understood in holding the Gazelle liable for this collision fu· say that, if a collision should now happen between a steamer one or'these small 'Pleasure yachts carrying asitigle white light as the Jbsie did, there might not be a greater degree of negligence chargeable to than can bEl'in this case.. But here we have the officers of th'eGazellechargeltble with notice';"".First, that they were.in constant danger with, .and must avoid, this great number of small yachts upon the 'waters of the harbor; and,. secondly, of the kind of lights that this craft carried in theriight-time; and hence the officers and cre)V of this steall1er must be' held to a due and proper vigilance to avoid collision 'with this kind of craft. I therefore feel compelled to nnd that the ·inquestion solely by reason of the 'want of due care on thepal't 'of the officers and crew of the Gazelle, and must hold her sponAible for the damages. I have had some difficulty in satisfying myselfas to the amount of damages that should be awarded to the libelant in this case. The libeldnt himself; who washer {)wner, testifies that the Josie was worth $800 in cash, and that he lost about $100 worth of personal property which was'on board of her. The proofshowsthat she was nine years old; that libelant'had owned her four or five years; that he paid $250 cash for her; and had put about $350 worth of repairs upon 'her during the time hebwned her. The proOf also shows that a new yacht of the size and rig of theJ6s16 could be built for about $700 cash. 'In view of all the testimonyhltbe case bearing: upon the question of the amount of the libelant's damages, and what would make him substantially good for his loss, I have concluded fix.' the damages to be paid bytbe GaEelle at the suin: of$500, and a entered for that amount.
RAWLEY V. SOUTHERN PAC. R. CO.
305
RAWLEY '11. SOUTHERN PAC. R. CO.
(Circuit Oourt, E. D. TexlU. December 31, 1887.) COURTS-FEDERAL ACT OF MARCH 3,
1887. Act of congress of.M;arch 3. 1887, § 1, provides that suit shall be brought in the district of the residence of either party, when the action is betweenciti· zensof different states. Held, that federal conrts will takejnrisdiction when plaintiff is 8 resident of the district wherein he brings suit, and defendant a created by laws of a foreign .
WHERE BUIT MAY BE BROUGlIT-
At Law. On motion to arrest judgment. Brady c!cRing, for plaintiff. Waul c!c Walker, for defendant. SABIN, J. This is a motion inanest of judgment for the want. of jurisdiction.· The petition was filed October 21, 1887, and the answer thereto November 29, 1887. The cause was tried December 7, 1,887, resulting in a verdict for plaintiff for $2,500; and 'defendant filed tiontfor new trial herein, December 9, 1887 ,which was overrulea;'December 22, 1,887; and thereafter, December 26, 1887, defendant ,filed his motion herein in arrest of judgment. The petition alleges that the plaintiff is a citizen of the state of Texas, residing in the county of Harris, in said' state; and that defendant is a corporation, duly organized engaged in a general railunder the laws of the state of Kentucky, road business in Harris county, in the state of Texas; and having an agent and m'anaging officer in charge of its business in said Harris county, Texas. I may here state that Harris county is in the Eastern district of the state of Texas, and that the suit is one to recover damnges sustained by plaintiff while engaged as a brakeman on the roads operated by defendant. The citation was served on C. C. Gibbs, acting agent of defendant, October 26,1887; The defendant appeared and filed an answer to the petition, November 29, 1887, denying each and every allegation thereof, and then,. further answering, set up several special defenses on the merits, and upon which the cause was tried with a jury, resulting in a verdict as above stated. The answer raised no point of jurisdiction; neither was there any special exception of any kind,nor any general demurrer. It was a fair and square sJefeIlse upon the merits as set forth therein. But, the verdict and judgment having gone against the defendant, it now asks for an arrest of judgment-First, because the court had no jurisdiction therein when the suit was instituted; second, because it appears by the petition and pleadings in the cause that the plaintiff, A. A.Rawley, on the twenty-first day of October, 1887, the time offiling the petition, and the institution of said suit, was a citizen of the state of Texas, and that the defendant, the Southern Pacific Company, is a corporation under the laws of the state of Kentucky, and it does not appear by said petition or pleadings that the defendant is an inhabitant of the Eastern district ofTexasj third,and for other reasons apv.33F.no.5-20
, ,306
,;.
FEDlmAL REPORTER. -' -.', , 1.-,
;1
parent on the face of the proceedings in the case. In reply to which it, is claimed by the plaintiff that ,he, :was at. the time of the filing of this suit a reRident ofthis district, ahd' a: citizen of Texasj and that although the defendant may have been ,an inllabitant of Kentucky, that its appearance and answer, and going tci trial 'uponthe merits, without exception to the jurisdiction, was a waiver of any privilege it might have had (lrut none is admitted) to have been sued elsewhere, not here. It is furtber claimed, by plaintiff that the suit was rightly brought, and that this counwould have had jurisdiction had no appearance or answer been tiled herein. In both of whicb;views I fully concur. In Texas, citations are served in 'suits against corporations on the president, secretary, or treasurer Qf s,u,ch ·or, UP01;l the local agent representing such company 1n the county in wbiech the suit is brought. See article 1223, Rev. St. Tex. And by this court, in the case of AngfJl'lwejer v. Bradstreet 00.,'22 Fed. Rep. "305, that a corpois foundperBonally present in its local agent, and such is the , pl'actice in this state. noexceptiQn to ,tPl;l service upon the local agent; the motion presented taking a much wider range.' It claims thi!l not only jurisdiction her!lin, but that ,it is prohibited fronitakingany ,whatever, because the defendant ¥ nQt an inhabitant of this dis,trict; ,and that conseritca.nnot coQ-ferthejuris'diction, eithe.r by stip\llatioD,or by appearance themliking of'de.. fense and trial"herein without e;:ception. It is very plai,n'thltt no method (Jould be'resor:ted 'to, when the jurisdiction restensoleliuponthe citizen'ship oithe in different states, bywhich citizens of the same state could. conferj1-uisdiction upon the. court. suclla cas,a would be ofno aVl\ilj filing ofsuit,citaij9ij,appearanl,le,llnd defellse, accompanied everiby' a the court would take. or have., allow ,diction,OIvQuld be of no avaiL" No of the United .per, itl, But '8;nd 4ave theelemepts of JunsdlctlOn bemgantagomsts, andtha ()ne Slles the' other in' either different division of 'a4istrictfr()lD his . or 'in,a different district froul his residence, he being a' ;citizen of a than ,that of and the plaintiff being'a dent of allch district, he could Gome in arid make, defense; apd'by so doing, withoutexcep'tion, he no doubteffectuallywaiye hisJuris<lictionalprivileges, aIld,the'courtwould havejurisdiqtion through the eJemental jllrisdictional q1,lalities parties, and the incidental recognition of the jurisdiction of tpe court by making a defense, upon the merits withollt protest or exception., " ,', . I think that I, might stop here, and withproprietyoveri'tile the motion in arrest of judgment, and woull1 do so but for ,the very able argument presented ,):>y the counsel for thede,fendant, !lnd supported by the case ()f County oj YUQa v. Mine Co., 32 ,Fe,d. 183, to the efl'ect that section 1 9f.thlf act of March 3, 1887, a)llendingthl;l act of March 3, 1885, to determi,ne jllrisdiction of circuit ccittrts of the United f?tates,' etc., absolutely forbids this court from taking jurisdiction of thiseansej the <1efend1l,nt D9tbeing ail inhabitant of this district. I do not consider that
a
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RAWLE:l
R. CO.
307'
stich the effect or intent 'of that statute, but the confrary. The decision referred to c1eai"ly,sustains all. that is claiDled forit by the defendant; but I dissent therefrom,asI am unable W concur with the very learned judge who delivered the opinion, or the eminent jurists who concurred therein, so far as it in any way affects the jurisdiction of this court, where it is founded only on thefact that the action is between citizens of different 8tates. The clauses of section 1 relied upon by defendant are precisely the same in both acts, commencing with the word "but," down to and including the word "inhabitant," with· the exception of the word "of" in the last act, which. is plainly intended to be "or," as in the first act. The punctuation is diSsimilar, but the sense is the same. In the last act, the Bubjects are continuouBj but divided by semi-colons without the use of a period; as, in one instance, in the first act, they are as follows, viz.: 1875. 1887. "But no person shall be arrested in "But'no person shall be arrested in one district for trialin another, inany one district fortrial in another, in any civil action before a circuit or district civil action before a circuit or district court. And no civil suit shall be court; and rio civil suit shall be brought before either of said courts brought before either of said courts "by . .original against any pel'son by'any original against any: process or proceeding in any other . process of proceeding in' any other Qistrict than that whereof he is ".n in- district than that whereof he is an inhabitant,,,; . habitant;" I '
is
. ,tt Iooktl)tQ me veryp111in,' in the absence of the residence of the plaintifi' herein in this diStrict, that if those portions of that sectionthe one stopping at a,comma, and the other at a semi-colon, each being only a portion of a sentence-were either the whole of it, or alone to be considered, that this90urtwould not have any jurisdiction of this cause, nor could any species of consent give itJllrisdictioo. But unfortunately for the argument of counsel:for the defendant, and the conclusions reached by the coij,rtin the case above referred to, there is a little mpre of the statute conntlCted therewith, and as a part thereof, and embraced as a portion' of 'the foregoing provisions, viz.: 1875. 1887. "Or in w'bidh he shall be found at "But, where the jurisdiction is the' time of 'seivingsuch' process, or founded only on the fact that the accommencitlg such proceeding. except tion is between citizens of diffe'rent as hereinafter provided." states, suit shall be brought only in the district of the residence of eJther the plaintiff -Qr the defendant." What is the difference now between those twocontinuations,and what is the efiect upon the present jurisdiction? Why under the act 1875 a sue a citizen of another state in any: district' in Wbtch he might befol1nd; notwithstanding the prohibition in questiou, While unoer: the new sue the defendant in the ,districts eithedh.e·platinti.ff or the defendant." In this ,case, of the plaintiff brought the suit in the district of histesidencej an6:tbe defendant·wne,citedinto·court Iiil eonfurmity with· the stateJaw by service '{Ii{theJocatagent,' or agantrepresenting the company in Harm oounty,
30S
sue the defendant in any district wherein he may be foundj but, if in a suit where the jurisdiction is founded whoUy on the fact that the action is between citizens of different states, he can only be sued either in the district of the residence of the plaintiff or the defendant. Formerly, in such case, the defendant could be picked up and sued in any district where he mightbe foundj but it is not so now. A to the two statutes printed in opposite columns is made to the 120 U. S. 786 et seq., for a more full and perspicuous comparison of the laws in question. The jurisdiction of this court in this case is unquestionable, and the motion in arrest of judgment herein Inust be overruled, audit is so dered.
as any district in Kentucky. Under the new law, (1887,) you cannot
in this district. This was as much the district to sue the defeildant in
REINSTADLER
v.
REEVES
et al,
(Circuit Oourt. B.D. ltfi88ouri, E. lJ
December 80,1887;) . ,.
1.
COURTS-FEDERAL JURISDICTION-WHERE SirITMAY BE BROUGHT-ACT 011' MARCH 8, 1887. ·
2.
SAME.
Whether the act of March 3, 1887, operated to depriyethe circuit court of Missouri absolutely of jurisdiction oyer the case in question, or whether it simpl, gaye the defendants a priYilege, which. they might waiYe, of being sued In the district of their residence, not decided. Held, howeyer, that eyen if the act conferred a priYilege merely, which defendants might waiye, that it had not been waiYed ·by a formal appearance entered on the first rule-day, followed on the secondrule·day by an assertion of the right to be sued only in the district of their re'sidence. SAME·
8.
.' Held, further, that, as the bill showed its face that defendants were residents of Indiana, the right might be asserted by demurrer as well as by mo. tion to dismiss.
In Equity. On demurrer to bill. George H. Knight, for complainant. Parkinson &: Parkinson, for defendants. THAYER, J., (orally.) The suit of Henry Rcin8tadlerv. Marshall T. Reeves and others is an action to restrain the infringement of certain letters patent. The bill was filed on the fonrthday of last October, and the subpeena was regularly issued and duly served in this district on the fifth emdsixth days of Odober. The bill shows that the complainant in :the case is a resident of the stateo! Missouri. ,that the defendantllare all residents and inhabit-
RE.INSTADJ.ER V. REEVES
309
ants of the state of Indiana. On the November rule-day, the defendants, by their solicitors, entered a formal appearance. On the succeeding rule-day in December, they appeared and filed a demurrer, based upon the ground that, under the act of March 3, -1887, they are not amenable to suit in this jurisdiction in cases of this kind, they are not inhabitants of the district. The first section of the act to determine the jurisdiction of the circuit courts of the United States, approved on March 3, 1875, contains this clause: "And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any otIier district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding." And that clause is- nothing more than a repetition of the same Clause contained in the judiciary act of 1789. The correspondin& clause contained in the first section of the amendatory act, March 3, -1887, is in the following language: " And no civil suit shall be brought before either ofl'aid courts against any person by any original process or proceeding in any other district than that wher he is an inhabitant; but, where the jurisdicti()n is founded only on -of the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendaIlt." As this is a case where the jurisdiction does not depend upon the fact that the parties are citizens of different states, but depends upon the :subject-matter of the suit as arising under the patent laws of the United Btates, thE! defendants contend that, as the law now stands, they cannot be sued on this cause of actioll in any other district than that whereof they are inhabitants. And they further claim that, under the act of 1887, jurisdiction of this suit has been withdrawn from the court, so that even though the defendants chose to submit themselves to its juris.diction, the court would be. without power to hear the case. Counsel for complainant apparently concedes that under the act of March 3, 1887, a bill to restrain the infringement of a patent should be brought "in the district whereof the defendant is an inhabitant," and ;such seems to be the effect of. the amendment in question. Twopropositions are advanced, however, in opposition to the demurrer, and they .are as follows: First. That the provision in the act of March 3,1887, to the-effect that j'no civil suit shall be brought before either of said courts against any per,£on by any original process or proceeding in any other district than that whereof he is an inhabitant, "-is merely the grant of a privilege to the -defendant to be sued exclusively in the district of which he is an inhabitant, which privilege he may waive if he likes, but that it does not op-erate to deprive the court absolutely of jurisdiction. In this respect, it ill claimed that the same construction should be on the clause that b,lul unifOrmly been placed on the corresponding provision l.lontainediIi of 1789 and in the act of March v.
310
688,'6391 ' SefX!YU1l'l/. It, is contended that as the provision under consideration confers a privilege merely, which a defendant may waive if he likes, the: defendants in the present instance should be held to have waived the privilege (jf being sued in the district of their residence, by entering an appearance at ,the November rules. With reference to the question whether the clause quoted from the first section of· the act of March 3,1887, should receive the same construction that has been plnced on the correspondingclaus6 in the judiciary act of 1789, or whether there are reasons apparent on the face of the last amendatory act why the clause in question should be regarded as a denial of jurisdiction, rather than the grant of a privilege, I express no opinion; but, in my judgment, thepropositiOll advanced by the complainant's. counsel to the, effect that the pri:vilegegranted to the defendants (if it be a mere privilege) has been waived, is untenable. ',In this instance, the on its face; it 'was :duly issued to the marshal of this district, and was served on the defendants within this district. In these, respects it is unlike a case in which' there has been no service of process, or a defectiv.e serVice, or in which the process is irregular, or it ha.s been, executed 'outsIde of the state and district, and the defendant is for that reason at liberty to ignore the process. See Toland v. Sprague, 12' Pet. 300. In all ofsuch cases, ifthe defEmdant enters a general appearance.,that is to say, gives no notice that he will subsequently question the regularity of the process or the service thereof, by means ofwhicb his apllearancehas been secured,-he may be fairly regarded as having waived' all suchobjecti<)lls. But in a caselike the ,present, where the process and service are in all respects regular, and process has been served in the ,dis-' trict,. and where the statute accords to the defendant the substantial privilege of being sued only in his owndistrict,he should be permitted, in' my judgment, to assart that privilege in any appropriate form,even after Ii, formal appearance, if no other steps besides anapp:earaJ.1ce have been taken; looking to a defense of the action on .' To any: right whatever, the defendant must'appear;and'ifhe has a right', such as is litst described, he should not be regarded as having int\lntionally abandoned it by a mei'eentry of an appeararice on one rule- ' day, followed on the next by of his statutory right, by a plea <#otherwise.. Certainly an appearance, such as was enMredin thepl'esentcase, contains no evidence on its face of an actual intention on the pa:rt of the defeIldimts to waive nny rigHt, and inasmuch the privilege daimed by the defendants, is that of ha:Ving it trial in' some' other forum than the one inwhich. they have been court may' well hesitate to give such ef1ect to the appearance as "will force them tOll tnar ina jurisdiotion, tow'hich they' object. .' .... " . ; .· 'Inco'uclusionI have only toaddthatI have some doi.l0twhether the; defendants, should be perinitted to raise the question involved on dennirrerj in view· of tlie fact that'I have thus fat considered
Rowim; Pet: C. C. 489; Logan v.Patrick, 5 Cranch, 288; Lovejoyv. Insu/ranee 00., 11; Fed. Rep. 71, note; Romai:ne v. Insurance Co., 28 Fed. Rep.:
as
"COVERT V. W ALDltON.
the case upon the theory that the court has jurisdiction of the -matter, and might try the issue if the defendants submitted to a trial in this forum. Of course if a bill shows on its face that the court hasno jurisdiction of the subject-matter, a demurrer may be filed. But if the -court has jurisdiction of the and the deJendant merely asserts the privilege of being sued in some other jurisdiction, it would -seem more regular to assert it by motion to dismiss the bill, in those cases where the privilege of being sued elsewhere appears on the face of the bill. As was shown by JudKe HAMMOND, however, in the case of Romaine v. Insurance 00., 28 Fed. Rep. 635, 636, there is no uniform method of rnising such issues as are presented in the present case; and, as all the facts appear upon the face oftha bill, it is perhaps as well to entertain the demurrer based on the ground of the defendants' exemption from -suit in'this district, as to require the filing of a motion to dismiss the _bill. The demurrer is accordingly sustained.
CoVERT". (OircfJ,it (JoUf1,
WALDRON
et
aZ.
B.D. N6tJJ York. January 3. 1888.)
OJ' DEFENDANTS-ACT 01' MARaK 8, 1887. - _. , , Where hi a suit it appears that many of the defendants are from the same state, with conflicting interests. the controversy is between citizens- of the state, and the federalcourts have no jnrisdictionunder Act Congo March 8. 1887,g!,vingthemjurisdictionwhen the suit is between citizens of different states. -
In Equity. Bill for discbvery. Tunis Covert, complainant, of Canada, filed a bill for discovery and marshaling of assets against S. J. Waldron and :several hundred other defendants. James H. McOreery, for complainant. Foster k Stevena, for defendant Oakley.
'LAeoMBE,J. The,complainant in this srlit is a citizen of Canada. 'The defendants number several hundred, and are citizens of very many different'states and territories.· Thirty or more of them are citizens of the state of New York. The complainant avers that he is a lineal descendant 'and heir at law of four of the original patentees of certain lands in the city of New York, now divided into 52 blocks of ground. The patents referred td were issued by governors' Niohbls and Dongan, in 1691 and 1712, respectivel)'. It is further averred that under the laws of the state of New York complainant is a tenl1nt in common with the heirs at law of all said patentees, and entitled to participate in the distribution of said estate, and that the defendants are or claim to be descendants a.nd heirs at law of the said original patentees J or of one or
312
FEDERAL. REPORTER.
more. of them. On these facts the complainant prays the court to grant nim its aid to discover and determine who are the heirs at law, complainant's co.tenants, and the quantum of their interests, and who, as such, are entitled to be made parties to a proceeding in partition for the settlement and distribution of the estate. Pending the determination of this question. the court ifl asked to appoint three receivers for the preservation of the property, with power to sell any part thereof, and to marshal the assets of the estate for distribution among those decided by the final deqree of this court to be entitled to participate therein. The bill ., closesvvith a prayer for general relief. Several serious objections have been urged to this bill, which need not be considered. The citizenship of the parties is fatal .to the juriscliQtion of this court. Where a federal question is not nor the flicting,grants ofdifferent in question, the controversies of which the circuit courts of the United States are given original cognizance, J;Xl,U§t be between citizens of different states, or between citizens of a state and foreign citizens or subjects. It is abundantly settled by authority that, in arranging the parties relatively to the controversy between them, the, mere form of the pleadings may be set aside, and the parties placed on different sides of the matter in qispute, according to facts. When, upon such an arrangement. it appears that citizens of the same state appear on both sides of the controversy, the controversy is not within the jurisdiction of the circuit court. :Removal Cases, 100 U. S. 457; Railroad v. Ketchum, 101 U. S. 289; Barney v. Latham, 103 U. S. 205; CariJOn v. U. Hyatt, 118 U. S. 279, 6 Sup. Ct. Rep. 1050; Blakev. McKim, S. 336. ' The interests of all the parties to the controversy in the case at ba.r are conflicting, and, in arl,'anging thell1 relatively to the matter in dispute, Phoebe A. D. Bosworth, a citizen of New York, who is made a defendant, is as much opposed to H. S. Blunt, another citizen of New York, made a defendant, as is the plaintiff himself. The controversy is one, appear on both sides, and, as therefore, in Which citizens of New such, is not within the provisions of section 1 of the act of March 3, 1887. , , The particular motion which has been argued is to strike out the appearances of certain persons who are not defendants, and who also apply on petition for leave to intervene and defend on the ground that they are in actual possession of the property to which it is alleged in the bill the complainants and the defendants c:ktim title. The objection to the bill being jurisdictional, may be enforced by the court, aua sponte, though not raised by the pleadings nor suggested by counsel. Morgan v. Beloit, 7 Wall. 618; V. Cock8, 23 Wall. 466. . Let an order therefore be entered dismissing the.bill for want of jurisdiction.
FELI.OWS
V.
HYMAN.
313'
FELLOWS et aZ.v. HYMAN etal. LOOKER V.
(Oircuit (Jourt, D. Oolorado. J anuarv 2, 1888.) LACHES-'-WHAT CONSTITUTES-DELAY IN. BRINGING SUIT.
In an action to avoid a conveyance of mining lands. alleged to have been procured by fraud, from plaintiff's ancestor. it was shown that the ancestor died soon after. without knowledge of the fraud, and for 18 months prior to the suit plaintiffs lived in California, and knew. nothing of the land, or wh.at was going on in this state; but immediately on getting info.rmation of the fraud, proceeded to investigate it, ann brought suit in a few days-a little less than three years from the· date of the conveyance. Held. on demurrer·. that this was not such laches as ought to deprive of the right t08ue.
In Equity. On demurrer. . Bill filed by plaintiffs, Julia Fellows and others, against defendants, Danie}·M. Hyman and Charles Burns, to set aside a deed conveying an · interestin mining lands, made by the father of plaintiffs, since deceased. Defendants' demurrer overruled.· C. lWckwell, for complainants. C. J.,Hughe8,: Jr., for defendants. BREWER, J. In the case of Julia Fellows against Daniel,M. Hyman the demurrer was argued yesterday, in which the only question discussed was the one reserved by Judge HALLETT for consideration before· me, that of laohes. Complainants have filed an amendment to their Gomplaint, in which they stateIIlore at length the circumstances which delayed the bringing of this suit.. The defense of laches is one peculiar to a court of equity, and is enforced wherever, from the delay of the complainant in the bringing the suit, it would be inequitable to enforce the specific right. There is no fixed period of time which courts require as constituting laches. Each case stands on its own peculiar circumstances, and yet there are two kinds of cases between which there is a marked distinction. One is where the complainant was under a contract or other obligation to do something at a particular time,and omitted to do it at that time; as, for instance, where there is a contract to convey real estate, in which complainant has failed to make payment at the very time specified in the contract; there the complainant is at fault, and courts oftentimes will refuse specific performance, even though the delay has been short, 'if by reason of any changed condition in the relation of the parties, or the value of the property. it would be inequitable to enforce specific performance. The other case is where the defendant is at fault; where he is guilty of some fraud or other wrongful conduct by which he has obtained a title which, but for his fraud or misconduct, he would not have obtained. In cases like that, courts do not enforce the rule of laches with any great strictness, and certainly do not enforce it if the complainant commences his suit