jurisdiction. If the contention of the defendant is correct, the state legislatures, l>Ylitniting th,e juril;ldictiop; Q,f can at the same time limit the jurisdiction ofthe federal courts. Such a proposition cannot be maintained.' This court had occasion to pa.ss upon a somewhat similar proposition in Edward8 'v. Insurance 00., 20 Fed. Rep. 452. There can be no doubt as The motion -is denied. '" ' ,

(Oircuit Oourt, E. D. Louuiana.May8, '1889.)
1. before the,Audgehavingjuxisdiction, over'the place Wllere ,liE! has Ilis domicile or except as otherw,i$e,,llp'eciallY prQVi,ded. Art,icle 165, No.6. de,, , elares th'at when the defeJidants al-e Joint obligcYrs'tbey maybe'sued at the domicile of anyone of them( He14that; as the lawsof,Louisiana creating , the ,me4'Il,p,01it,al1 P, Ol"iC, e., Ol1iZ,i,P,g"the, i,SSllan,ce,' ',Of" warrants. im,pos,e no on ,city of }rew jointly, with anr person or corporation. the dIstrIct parish has no Jur.sdlCtio? 1 the' city"thoughother defendants are JOIned, actIon oli !such warrants a$'41lll'8t over :Whom the hili "

, 2. S,\ME-.,.WAIVER. , : , ' "" , ' "", """ ' ,,",' , Coile Pr"c. art. 98,'provid'Els One fS8uedbefore a judge having DO 'jurisdiction overhifjiplace :(if domicile, but who is competent to decidothe t. ,cause i to the merit. instead ;of, declinjng the jl,ldg]lleDJ s,ball: be. valid·. In an action against city '. . of New Orl'ell.nsand,outslde 'an apphcatl'on was made fOl'arulefor ,!' '" !the a recei'Ver for th'll' outside parishes. to which rule, tl1e Git-y , .' ,was. nGlJt;:.. The a general appearance. I': and.pq ,p!eaQl,llgs havIng, flIed by cIty! a pro COnfeY80 taken' agalttStit."J, On' anapphcation by the clty'fdr airehearIngonthe ground that thlHlOl1Jlt ;had rrio jurisdiction' o.ver .it, held. that 'the jurisdiction had not (', ,1:Iee n , : ' ,",', '; ';:; ",,,' : , . ',' The cause of'action not being 'onewithin the Qriglnal jurisdiction of't)Ie '·.!.'federal cil:lc\l'111i cO,urt. bn'removal of the cause to it, only acquired state ,court had. " ;;" such jurisdiction over the
Of ,,' , ' . " '"

At Law. On final hearing. Charles Lougue, for complainant. Carleton Hunt. City Atty. t ( "i': " :Bef9rePAR.\?EEandBILT.. ,
) I

H.

,")

;.

This suit, was commenced in the ,district court of ·th,e "parish of J effersop, on the 21st <:l1tyof 1886; and is l,l. .suit brPught : plq,intiff"alleging' himself to be ,a ci of the, British empiret',f.o.r J hiIilself.a!nd other: ho.lders ofmetropfiilitan policewarra;nts;' Orleans and and Sl:t. ,,;aernard. to enforee 'on the· part ,of Said cprppratiops, for the()u't':aql.l;l.di:ng metropoliw,n poliCE! 0n the 21st dJlY:o( October,
, i

GOLDSTEIN· tI. CITY OF NEW ·ORUANS.

627

1886, a cItation was issued outofthe clerk'sotlice of the district court of the parish of Jefferson addressed to Mr.' J".' V. GuIllotte, mayor of the City 'ofNe'" Orleans, sUDlliloning him to comply with the demand contained in 'the petition, {a copy of which accompanIed the citation,}or to make his answer withIn 10 days after service. This citation was served on Gu:Uotte, mayor of the city of New Orleans, personally ,on the 26th day of October, 1886. On the 28th day of October following, and before the delay fixed for answering on the part of any of the. defendants had expired, the plaintiff filed his petition and bond for the removal of the cause to this court, and the record was filed in this court on the 1st day of No"ember, 1886. Thereafter certain proceedings were had contradictorily in this court with other defendants than the city of New Orleans, on an application to appoint a receiver for as much ofthe metropolitan police district as lay outside of the parish of Orleansj said parish being excepted, because, as stated by complainant in his motion, a receiver had already been appointed for that part of the district. In connection with these pro<leedings, on December 6tb"WalterH. Rogers, Esq., city attorney for the city of New Orleans, entered an appearance for the city of New Orleans in the chancery order-book, and took part in the trial oftherule; On July 5,1887, no demurrer, plea,or answer having been made by the city' of New Orleans, and the rule.,day baving expired,thecomplainant caused a decree pro confes8o to' be entered against the city of New Orleans in the chancery, order-book· of the court. On November 7 , 1887, the city of New Orleans being still in default, on motion onhe complainant a decree pro confesso against the city of New Orleans was entered in open court, and a reference was thereupon made 'to oneofthe standing masters of the court to state the amount due, and for discovery,etc. The master baving mauea report intbecase, and 30 days thereafter having elapsed without exceptions being filed, on Feb'ruary,ll, 1888, on motion of complainant in open court, the master's report was confirmed, and a final decree entered against tbe city orNew Orleans for the sum of $95,643.27. This decree, tbough in open court, was not entered in tbeminutes, but by some direction was entered ip..the chancery order-book. On the 19th ot'· March, 1888, the city of New Orleans, through its attorney, applied for a rehearing in the case, mainly on the ground that neither the district court of the parish of Jefferson nor this court bad ever been seised of jurisdiction in the case; but also on the ground tbat the city had a just and valid defense to the action. The matter coming on to be beard on the application for rehearing, on May 19, 1888, a rehearing was granted in the case, and leave waS J!:iven to the city of New Drleans to file an answer within five days,on condition of paying <lasts and speeding the cause. The answer filed by the city setup substantially three de1imses: (1), Want of jurisdiction in the court; (2) a plea of fes adjudicata; and (3) that the city is in'no wise and on 'I10a(lcount liable to the complainant.: To this .answercoD'lp]ainant filed Iireplicatioll, and thereupon an examiner was appointed, tbe-evidetmetRken, and the case as to the city of New ,Orleans is !'low.submitted. onfinQ.1hearing.

628

FJ!:DERAL

vol. 3$. ,

The question of jurisdiction as to the city of N(lW Orleans is now for the first time squarely presented to the court. Article ofthe Code of Practice of Louisiana declares that" it is a genElral rule in civil mattli'rs that one must be sued before his own judge,-that is to say, before the judge havin,g jurisdiction over the place where he has his domicile or residence,-and shall not be permitted to elect any other domicile or residence for the purpose of being sued; but this rule is subject to tholle exceptions expressly provided for by law." The "exceptions provided for by law" are found in articles 163-168,following. The exceptionsl'elied upon in this case, under which jurisdiction is claimed in this suit for the district court of the parish of Jefferson, is No.6 of articlEl 165. as follolVS: "Whlln the defendants are joint obligors, they may be cited .lij;, tile domicile of any olle of tht>m." .. Articles 2080 and 2081 of the Revised Civil Code of the state are as follows: "When several persons join in the same contract to do the same thing, it prodllcesa joint obligation on the part of the obligors."· ' .' "When one or more make an obligatiGnto seyeral,persons for the performance of something for the common benefit of all the obligees, it ere· ales an obligation which is joint in favor of the obligees." .. An examination of the laws of the state which created themetropolitan police, and provided for the issuance of the warrants now held' by and liabilithe complainant, shows that whatever duties, ties were imposed thereby on the city ·of there was no obligation, duty, nor responsibility imposed upon the city of jointly with any other person or corporation. . Therewa$, then, no joint obligation on the part of the city of New Odea,ns ;with the parish of Jefferson. which would give jurisdiction to the djstrict CQurt of parish of Jefferson of the suit against the city of Ne,wOrleans. Artiqle '93 ofthe Code of Practice of' the state provides:. . "rione be cited before a judge whosejl1l'isdiction does not extend to the ,place of his domicile, or of his,usuall'esidence, liut who is competent to de.cide tht> cause brought before him, 3np. he plead .to the merit. instead of Il,eelining the jllrisdiction, the jUdgment given shall be valid, the ant bea minor." . . , . , ,
, .' ; 'j

The di8trict court for the parish of Jefferson coprt of record, of generalcivil jurisdiction, and the judge thereof was cornpeteut deci,de ,the cause, if properly brought before himjhut the jurisdiction of the coUtt ,could not be. acquired in the case, aforE!Sl1id article, as to the city of New Orleans, unless said city shoQld waive its domicile by pleading to the merits, instead of declining the jurisdiction. As ,the city of New Orleans made no appearance ,whatever in :the district court ·of 'Jefferson parish, it follows. conclusively that the jurisdicti'on 9f,that,co1l1:t : never attached. The cause, of : ties, is one which could not PaVEl been, instituted in thjscourt as'm>t :being.within olp' originaLjurisdictiQtl.. ,Whatever now have is based on the removal

LEW ARNE V. MEXICAN INTERNATIONAL IMP. CO.

629

is brought here in exactly the same condition as to jurisdiction.over parties it had in the state caurt,-no better, no worse. As the j-Jrisdiction was defective in the state court, it was defective when the cause came here by removal. As the defect could. have been cured under article 93, Code of Practice, in the state court, by the defendants pleading to the merits, it is probable that in like manner could our jurisdiction have been perfected. The fact that the city attorney entered a general appearance in this court for the city of New Orleans, and the fact that there was a decree pro corifesso entered against the city, are relied upon as being equivalent to a plea to the merits, and as sufficient to perfect the jurisdiction of the court under said article 93. It must be remembered that the appearance was entered in connection with the proceedings looking to the appointment of a receiver, which for some reason seems :to have brought the city into court, although the city. waS not actually a party to the rule, (see application for rehearing hereinbefore referi-eqto,) and to that extent was qualified; but at best, it had no other effect than to cure the defective citation, which was defective in that was not addressed to the city of New Orleans., ','rhe decree. JYT'O confesso was entered becaqse the plaintiff did not plead to the merits. Under article 93 of the Code of Practice thE! defectivec jurisdiction could be cured by pleading to the merits, and in not declining the jurisdiction. In this connection it may be noticed that in every pleading filed ill this case by the city the Jurisdiction of the court has not only elined, but has been protested against. We, are satisfied ,that upon the foregoing facts the plea to the jurisdiction should be maintained. ,In the succession of the city officers, resulting from the election, the appearance was entered, and the answer upon the merits, in connection with a separate plea to the jurisdiction, was filed. We do notllttempt to say that the objection to jurisdiction could or could not be waived. The clearly always intended to insist, and has always insisted, ·defendant want of it. W think it but just the defendant have leave upon withdraw t:he appearance herein entere(l, :ilJ)dthat portion of the a.nswer which relates to the merits. Such leave is accordingly gl'anted. Upon this being done, the plea to the jurisdiction will be maintained, .and the bill dismissed for want ofjurisdiction, so far as the city of New .orleans is concerned.

LEwARNE

v.

M:l!:XICAN INTERNATIONAL IMP.

Co. et al.

«(Jzrcuit

Court, E.D.

Louifia'!J-fl.

May 9, 1889.j

:EQt1ITY-PLEADING--MULTIFARIOUSNESS-RULE' 94,. ," , " ',' A. bill brought by a stocltholder againstthe cQrporationand othOl'S, charging (1) an illegal issue of preferred a brelL<:b of trust on the part of " in ,fraudulelltly issuing fuB-paid stock for a " DQminalconslderatJOn; and (3) an Illegal purcha/lc of a certaIn ...,. and equity, ,,"u1e94. ,charged,are separatl( am!d1st}nct·· or andcollrei$ting of a.se_los of the s!'me parties. ,,' , .: , : " f <