tI. DULUTH, I. I . . A. aT

00.

CAMPBELL

L

'11. DULUTH,

S. S. & A. Ry. Co.

April 7. 1892.)

(Circuit Court, D. Minnesota.

CIRCUIT Co1T&Ts-JURISDICTION-RBSIDBNOB OJ! DBnNDA:NT.

Under Act Cong, March 3.1887, $ 1] as amended by Act Aug. 18, 1888. citizens or SUbjectS of foreign states can sue citIzens of the United States in the federal courts only in the' district in which the latter reside. A corporation is conclusively presumed to be a resident,and inbabita!1t of tbe state'u'IIder whose laws it is created, and an employe, a citizen of a foreign state, cannot maintain an action for damall'es against a railroad in a state other than tha' under wbose laws it was organized, merely because its agents are there found engaged in its business.

.. B.ua:B-CoBPOBATIONS-WUBRB BlJA:JlLE.

At Law. Action by William Campbell against the Duluth, South Shore & Atlantic Railway Company for damages for personal injuries. Causedisinissed. Statement by' SANBORN, Circuit Judge: The plaintiff, a subject and citizen of the df)winion of Canada, brougM an action at law in the Minnesota district against the defendant, a corporation created and existing ·under the laws of Michigan, to recover damages for injuries received by him at Bagdad, Mich., while operating defendant's trains as a brakeman. It appears from the amended complaint; whioh we permit to be filed in order fully to present the quesplaintiff's counsel desires to raise, that "the defendant owned and operated a railroad running through Bagdad, Mich., and Wisconsin, and into Duluth, Minn., and at Duluth Minn., said defendant maintains a ticket and freight office, with an agent thereat, who makes contracts there for defendant for both passenger and freight business, and defendant transports both passenger and freight so contracted for in its cars both to and from Duluth, from and to its other stations on its line of railway in Wisconsin and Michigan." The summons was served on the defendant's ticket agent at Duluth, and, under the statutes of Minnesota and the decision$ of the courts of that "tate, the service would have been sufficient to have given a state court jurisdiction of the defendant corporation, if the action had been pending in such court. The action comes before us on an order to show cause why the service of summons should not be set aside, and the action dismissed, upon the ground that this court has no jurisdiction of the action, because the defendant is not an inhabitant of this district. Larrabee &- Lammo7l8, for plaintiff. W. W. Billson, for defendant. Before SANBORN, Circuit Judge, and NELSON, District Judge. SANBORN, Circuit Judge, (after stating the facl8.) The first section of the act of congress of March 3, 1887, (24 St. p. 552,) as amended by the act of 13, 1888, (25 St. p. 433,) defines the jurisdiction of the circuit courts suits .of a civil nature, at law or in equity, originally brought. in those courts. Aside from the restriction aa to the V.50F.no.3-16

in controversy, it declares that the circuit courts shall have original cognizance, concurrent with the courts tlf the 'states;.'of'fhre'"eIasses of suits: (1) Those arising under the constitution or laws of the United States, or treaties made; or wHich shall be made. under their authority; (2) States are plaintiffs or petitioners, (3)thos6 those in which the in i-whibh ia cOli:tl!Oversy citizens ()f different etates; (4) those in wlliChthere is' a 'controversy between citizens of the same state, under of different states; (5}those in which there claiming is ot.a sta.te and foreign states, citizens, or subJects. , The thEm provides: "But no person shall be arrested in one district. for trial in another, in any clvilactioh1!lefdre acircuitl>t district court, and DO civil suit shall be brought of said. courts, ,against any perlion, by any original process or proceeding. in any other district than that whereof he is aijinhabitant; but, where the jurisdiction is founded only on the fa,ct that the action is between citizens of different states, suits ahall be brought only in the district of the residenlle· of either the plaintiff ortha defendant." now the jurisdiction of the circuit ,f()unded <m!y or .lit ()11 the fact that the action is· between states. This actio,o i$one,inwhich there is a controversype:tw.een ,a citizen or subjeQt 'of a foreignst:ate and a citizen of a lwnpe; exception l,lontained in the last ,c:llause, above quoted, to thegener!¥' ,rule that nocivilsqit shall be brought in the circuit courts against any person by oqginal prOce$S, in any other district ·,than that whereofhej!J,sn apply to this Qction. The defendant is conclusively presume<ito be a resident and inhabitant under whose laws it}Yascr!ll1ted. Gormvlly &; J. Manufg Co. Fed, Co. v.Koontz.104 U. S. 5, 1.2; 37 Rep. 65; Booth v. Manufactujring 00., 4:0 Fed. :ijep.lj 1I1ye:r8 v. Murray, 4/3 Fed. Rep..695j National, T.'lJpographic (]o.,v.liBJ.P Xvrk;Typographic Co.:. 44 Fed. Rep. 711. It would seem to follow tkat if this pJaintiff, a, subject of Great Britian, and presumably C!lQada, desires to bring suit against this defendant in the cir9uit c.q\lrts QOhe United do soin the district of Mich,0f;JVhicbtbe d;efendant is; an inhabitant. The acts of congress do our. m,/jAi,on"give theoiti.zens ,or subjects of foreign states the right or privilege of maintaining actions against the citizens of the United States in the circuit courts in any district in which the plaintiffs may chance to find a ticket or other agent of the defendants carrying on their bus!uel3fh" J"lfthey desire to ;bring· ,suits in the fllderal courts of the nature of the, one at bar, they must resort to the cirCUit. court in the district ef defendant's residence. These ,views are sustained by the folht4'il1g.decisioms:WilBon v. Telegraplt ,co., 84 Fed. 'Rep. 561, 563, 564; Mach:iJne OJ. v; WlIlthe:r8, 134 U. B. 41, 44, 10 Sup; Ct. Rep; 485; Denton'v.,!ntem(ational, ('.0., 86 Fed. Rep. 1, 3'; Filli v.RnilroadO:>;, 37 Fed·.. Rep.,6.5.,.; The motion to set aside the service 01' summons and dismiss the complaint must be granted. ' c(:>Ur.tis j

INSURANCE CO. t1. DELAWARE MUT. INS. CO.

243

It might be suggested that there is an apparent conflict between this decision and that rendered orally by Judge NELSON in 1890, in the case of Peterson v.,Ohicago, St. P., M. &:' O. Ry. Co.,t in which it was held that, on account of the action of that company in accepting and taking the benefit of a special statute of the state of Minnesota, (Sp. Laws 1881, c. 219,) whicllauthorized it to purchase. construct, and operate railroads in Minnesota, and provided that in all suits to which it was a party in the state of Minnesota it should be deemed a domesnc corporation, it had snbjected it to the jurisdiction of this court in a suit brought against it b'y an alien. It is sufficient to say that in the case at bar the question presented in the Peterson Case does not arise. Let an order be entered setting aside the service of the summons and dismissing the action.
NELSON,

District Judge, concurring.

INSURANCE

Co.

OF NORTH

AM:ERICA

Co. et al.

et al.

t1. DELAWARE

MOT.

INs.

(Circuit Court, W. D. Tenne8Bee, W. D. March 8, 1892.) L
REMOVAL Oli' CAUSES-SEPARABLE

Where a ,bill was filed by three marine insurance corporations of 'Pennsylvania, New York, and Rhode Island, respectively. In'lilleir own and in be,half of other marine inllurance companies having like interests, against receivers of a transportation line, who are citizens of New York, tile corporation being one of Illinois, a compress company, being a Tennessee corporation, and certain citizens of Tennessee, its trustees, certain other marine insurance companies of Pennsylvania, New York, ana the kingdom of Great Britain, Q.nd against 44 fire insurance .coID.panies; being corporations, respectively, of West Virginia, Pennsyl.. vania, New York, Illinois, Louisiana, Wisconsin, Alabama, Connect.lcut, OhiO, Texas, Minnesota, llississippi, Soutll Dakota, and the kingdom of Great Britain j and tbe objeCt of the bill was to establish a liability against the receivers, as carriers, upon divers bills of la,ding Issued by them upon sundry lots of cotton deposited by them in the shed of tbe compress company while awaiting c.(Impression, amounting In the aggregate to about 5,000 bales, being part of the wbole 14,000 bales destroyed by fire in the shed, for the, value of the cotton covered by their bills of lading, for Itll non-delivery at the point of destination according to the contracts of and·to apply in payment of that liability so establislled in favor of the owners of the cotton a share of the $301,750 of insurance upon tile 14,000 bales, Issued by the defendant fire companies to tbe compress company, which had a contract with the receivers to keep the cotton fully insured for their benefit: also to hold the col\lpress company liaQle for certain breaclles of contract, .and of trust arising out of it, by not insuring in solv'nt companies, by not, collecting such inI 8uranceas was available. and by not taking out full Insurance; and to apply the sum so realized from the compress company to the payment of the liabillty of the receivers, as carriers, to the owners of the cotton j and, lastly, that the plaintiffs, and other marine insurance companies who had paid to the owners on policies held by them the losses by fire on .this cotton, should be SUbrogated to the claims of the owners against tile receivers, as carrier!!, and that, generally, the fire Insurauce . fund in the bands of the carriers or compress company or of tile fire companies, unpaid, in exoneration of their losses .so paid asaforellaid: Held, upon the petition for removal of 0lle of the uonnectlc}lt fire insurance companies, t.wo ot the l·Notreported.