« ПретходнаНастави »
be found and served with personal notice, on causes of action arising in such State, as also in actions of such a transitory nature that suits may be maintained thereon in the courts of a different State than that wherein the right of action accrued; as, for instance, such causes of action as follow the person of a debtor, or other defendant, as contradistinguished from those of a local character, rendered so by their relation to local things, or by growing out of and dependent upon local statutes, in the State where the cause of action arises other than that wherein the defendant is sued. 1
$ 6. Jurisdiction Obtained by Fraud. But jurisdiction obtained by fraud is invalid, as where, if by false or fraudulent means, a party is induced to come from another State into the jurisdiction of the court, in order to procure service on him in a judicial proceeding, the court will set the service aside on motion and proof of the improper means thus used. 3
Service on a Non-resident, if a Witness. And so, if jurisdiction be obtained of the person of a defendant who is resident of another State, by personal service of process in a suit against him, made upon him whilst attending within the State where thus sued as a witness in a cause pending in the courts of such State, the service of such process will be set aside upon proper application; for it is the policy of the law to protect suitors and witnesses from service of process in civil actions, whether the process be such as required their arrest, or be merely in the nature of a summons. Service in such cases will be set aside, as well upon general principles as upon positive law, if there is such.3
7. Foreign Corporations, Executors, and Administrators. It is not definitely settled whether a corporation may be sued by service on its officers or agents doing business in another State 4 The ruling in Missouri is that a private corporation, incorporated under the laws of another State, is not liable to be sued personally, within the State of Missouri, by ordinary process of sum
inons, unless such foreign corporation has its chief office or place of business in said State of Missouri; and that, if such chief office and place of business be not therein, then proceedings against such foreign corporation can only be had in rem, as by process of attachment.1 So executors and administrators are not subject to an action or suit against them in their fiduciary capacity in the courts of a State other than the State wherein their authority is granted to them.”
8. Service on a Member of a Firm as Against a Non-resident Member Thereof. Service is not good against a non-resident defendant by being made upon a member of a firm, of which firm defendant is also a member; nor is it good against the firm, so as to authorize a declaration and proceeding against the firm, where the præcipe and writ show the origin of the action to be against a natural person as defendant. By such a proceeding and service no jurisdiction of the person of the real defendant is obtained, and no cause is legally instituted, or brought into legal existence, against the firm, upon which to sustain an action or judgment.8
* Middough o. St. Jos. & Den. R. R. Co., 51 Mo. 520; Same case, 3 Am. Rw. Reps. 461; Farnesworth o. Terre Haute, etc., R. R. Co., 29 Mo. 75; St. Louis v. Wiggins' Ferry Co., 40 Mo. 580; Robb 0. Chicago & Alt. R. R. Co., 47 Mo. 540. This subject will receive fur.
ther treatment. See post, Chap. 25, $ 3.
? Vaughan 0. Northup, 15 Pet. 1; Fenwick v. Sears, 1 Cr. 259; Dixon's Execrs. o. Ramsay's Execrs., 3 Cr.319; Kerr o. Moon, 9 Wheat. 565. See post, Chap 24.
8 Frink o. Sly, 4 Wis. 310.
CONCURRENT CIVIL JURISDICTION, STATE AND NATIONAL.
I. EXTENT THEREOF. II. Suit in NAME OF LEGAL OWNER IN UNITED STATES CIRCUIT COURT. III. CITIZENSHIP AND PROOF OF VALUE IN CONTROVERSY IN UNITED STATES
I. EXTENT THEREOF.
Under the national Constitution and laws, the circuit courts of the United States have original cognizance concurrent with the courts of the several States, of all suits of a civil nature at common law, or in equity, where the matter in dispute exceeds, exclusive of costs, the sum of five hundred dollars, in the following enumerated cases, viz.:
1. Suits arising under the Constitution, laws, or treaties of the United States;
2. Suits in which the United States are plaintiffs or petitioners;
3. Suits in which there is a controversy between citizens of different States;
4. Suits between citizens of the same State claiming lands under grants of different States;
5. Suits in a controversey between citizens of a State and foreign states, citizens, or subjects. And in naturalization proceedings.
But no one can be arrested, in any such suit, in one district for trial in another. ?
Common Law Civil Jurisdiction. The term cominon law civil jurisdiction, as here used, is intended, in the language of the United States Supreme Court, to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume, to settle legal rights;" and not such proceedings only “as in forms and practice conform strictly to those of the old common law."1 For there is no common law of the United States, as a nation; but the national courts (except in criminal cases) administer the laws of the respective States wherein they are held. 2
Common and Civil Law as the Basis of State Jurisprudence. And although the common law prevails in most of the States to a certain extent, in their local jurisprudence, and forms the basis of their judicial system, yet its continued existence in their more modern codes and revisions is of so modified a character as to retain merely its leading principles and outlines, while again, in some of them, the civil law is to be regarded as the origin of their systein.3 For the purpose, however, of discussing the subject matter of this section, it is intended, as above stated, to embrace all civil proceedings which do not belong to equity and maritime jurisdiction.
II. Suit in NAME OF LEGAL OWNER, IN UNITED STATES CIRCUIT
A person having the requisite qualification as to citizenship, and the legal right of the subject matter of the suit, may sue in the United States Circuit Court without regard to the citizenship of others who may be interested in the proceeds of the suits. Hence a note to bearer, for use of others named, as for instance, an unincorporated company, may be sued in such court by the bearer thereof, as the law places the legal interest in him. The courts have nothing to do with the trust, nor with the citi.
1 Parsons o. Bedford, 3 Pet. 433, 446, 447.
: Wheaton 0. Peters, 8 Pet. 591; Lor. man o. Clarke, 2 McLean, 568; Van Ness o. Packard, 2 Pet. 137; People v. Folsom, 5 Cal. 373. Though the com. mon law cannot be resorted to as giv. ing jurisdiction to the United States
court, yet it may be resorted to, to as. sist in deciding certain questions af. ter the jurisdiction attached. U. S. v. New Bedford Bridge, 1 Woodb. & M. 401; Gardner's Institutes, 301, 302.
3 See post, § 1, Chap. 6; Cooley on Const. Lim. *21-25.
zenship, of those to whom the equitable interest in the proceeds may be going 1
III. CITIZENSHIP AND PROOF OF VALUE IN CONTROVERSY.
In an action or suit, in a circuit court of the United States, by a citizen of one State against a citizen of another, it is not neces. sary that the plaintiff's petition, bill, or declaration should allege or state that the State of which either party is a citizen is one of the United States. It is sufficient if the State itself be named, and the court will necessarily take notice of the fact, if such it be, that such State is one of the United States, composing the Union, or national government. 2
So, when citizenship of a litigant party, of a State, is necessary to be averred or stated in pleading, an allegation that the party is a citizen of the United States, naturalized in a certain State, and residing therein, is held to be equivalent to an averment that the party is a citizen of that State. To confer jurisdiction, the citizenship must be shown or alleged in the body of the bill or declaration, in such manner and place as to be traversable, and not merely in the caption.4
Proof made of Value, to confer Jurisdiction. And when the nature of the action or suit is such that the demand is not for money, as for instance in an ejectment or other suit for land, and the law does not require the value thereof to be stated in the declaration or petition, then the practice in the United States courts is to allow the value to be proven in evidence.6
Rules of Evidence. The rules of evidence in a State are also rules of evidence in the courts of the United States, under the 34th section of the judiciary act, while sitting within the limits of such State; and such State rules of evidence are always followed by the Federal courts sitting in a State, as well in commercial cases as in others. The construction given to
* Bonpafee v. Williams, 3 How.574.
* Jackson v. Ashton, 8 Pet. 148; Findlay v. Bank of U. S., 2 McL. 44; Bayerque v. Haley, 1 McAll. 97; Dodge v. Perkins, 4 Mass. 435; Vose v. Philbrook, 3 Story, 336; Course v. Stead, 4 Dal. 22.
5 Ex parte Bradstreet, 7 Pet. 634, 647; Crawford r. Burnham, 4 Am. Law Times, (0.8.) 228.
6 Ryan v. Bindley, 1 Wall. 66, 68; Vance v. Campbell, 1 Black, 427; Wright v. Bales, 2 Black, 535; Sims v. Hundley, 6 How. 1; Brandon o. Loft. us, 4 How. 127; McNiel v. Holbrook, 12 Pet. 48; Wilcox v. Hunt, 13 Pet.