DOYLE V. BEAUPRE.
289 et ai.
DOYLE
et ai. v.
BEAUPRE
(Circuit Court, N. D. New York. REMOVAl. (IF CAUSES-TUrE OF ApPLICATION.
July 25, 1889.)
Under act Congo March 3, 1887, (as corrected by act Aug. 13, 1888, 25 St. at Large, 433,) giving a right of removal "at the time or any time hefore defendant is required by the laws of the state or the rule of the state court" to plead to the complaint, where defendant under the Code of Civil Procedure of New York was compelled to answer by October 10th an application for removal made November 19th, was too late, though under section 542 defendant might have filed an amended answer during that time.
At Law. Application to remand cause. John N. Beckley, for plaintiffs. Townsend, Dyett &; Einstein, for defendants. COXE, J. The plaintiffs are citizens of New York; the defendants of Minnesota. The action was commenced in the supreme court of this state to recover $1,250. The complaint was served August 31, 1888. Under the provisions of the Code of Civil Procedure the time to answer this complaint expired October 10, 1888. An answer containing a counter-claim for $3,000 was served October 7th. The plaintiffs served a reply to this answer October 11th. The cause was removed to this court November 19, 1888. The plaintiffs now move to remand upon the ground, inter alia, that the removal was too late. In this position they are right. The provision of the Code (section 542) permitting pleadings to be amended does not aid the defendants. The language of the act of March 3, 1887, (corrected by the act of August 13, 1888, 25 St. at Large, 433,) which provides that the cause may be removed to the circuit court "at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declamtion or complaint of the plaintiff," is clear and explicit. It cannot be construed to mean that the cause may be removed at any time before the expiration of an indefinite period contingent upon an answer containing a demand for affirmative relief and a reply thereto. The time to answer the complaint expired October 10th. In default of an answer on that day the plaintiffs were entitled to judgment. An answer having been served, the removal, 40 days afterwards, was too late, notwithstanding the fact that during that period the defendants might have served an amended answer. Manley v. Olney, 32 Fed. Rep. 708; Dwyerv. Peshall, Id. 497; Railroad Co. v. ld. 711; Wedekind v. Southern Pac. Co., 36 Fed; Rep. 279; Coal Co. v. Waller, 37 Fed. Rep. 545; HUl'dv. Gcre, 38 Fed. Rep. 537; Lockhart v. Railroad Co., Id. 274; Dixon v. Telegraph Co., ld. 377; Kaitei v. Wylie, ld. 865. The m'otion to remand is granted. , v.39F.no.5-19
FEDEItAJ. ltEPORTER,
vol. 39.
RIDDLE
et' al. v.
NEW YOiiK, J
L. E. & W. R. Co. July 9,1889.)
(Circuit Court, COURTS-
w:n.
Pennsylvania.
Where a corporation, created by the laws of one state, by its officers or agents, comes ihtoa j'uUicial district of another state, and there carries on business,-for example, operates lines of railway therein and has there an agent upon whom. under the laws of the latter state, process may be served, -it is an inhabitant of said district, within the meaning of the act of congress of March 3, 1887, and issuable in the circuit court of the United States of said district.
J URISDIOTION-INHABITAN'l'
OF DISTRIOT-CORPORATIONS.
Sur Motion to Set Aside the Service of a Writ of Summons. George Shiras, Jr., for the motion. James L. Black, contra. Before McKENNAN and ACHESON, JJ.
PER CURIAM. This is an action brought for the recovery of damages for the alleged violation by the defendant, The New York, Lake Erie & Westem Railroad Company, of the act of congress to regulate commerce, approved February 4, 1887. Two of the plaintiffs are citizens of the state of Pennsylvania, and one of them is a citizen of the state of Illinois, and the defendant is a corporation constituted under the laws of the state of New York. The grmind of the motion to set aside the service of the writ of SU1nmons is that the defendant corpo'ration "is not an inhabitant of the Western district of Pennsylvania; and that this court has therefore no jurisdiction in said' case as against the said company;" In support of the motion the defendant relies upon ,that clause of the act of congress, approved March 3, 1887, (24 St. at Large, 552,) and re-enacted August 13, 1888, (25 St. at Large, 433, 434,) which provides as ' "But no person shall be arrested in one district for trial in another in any civil action before a circuit or district cOlirt; and no 'Civil snit Shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant. but where the jurisdiction is founded only on the fact that the,action is between citizens of different suits Shall be brought only in the district of the residence of either tIle plaintiff or tIl,e defendant." The marshal's return, shows that the defendant company was summonedby service upon "Samuel Woodside,agent Qf said company, at their office in the city of Pittsburgh;" and the plaintiffs' statement of claim, ,which for the present purpose must be accepted as true, sets forth that the defendant company is dciing business in the Western district Df Pennsylvania, and has a permanent office in the city of Pittsburgh, in. said duly appointed thereto in charge of the district, wit,h au officer or defendant's business; that under certain recited written traffic contracts it acquired and possesses the right to transport freight over the lines of the Pittsburgh & Lake Erie Railroad Company, which in part are located within said district; that the defendant's own railroad is in part
·. N.lilW YORJ{,
E,. &0 V{. R.
co.
291
constructed within said district,and .hasforyears past been, and is now, operated by thedefendant company, \yith offices established thereon and officers appointed regularly and permanently in charge of the business on said line of road; and, further, that the defendant is, and from about May 1, 1883, has been, the lessee of the New York, Pennsylvania &. Ohio Railroad, which in part is constructed through said district, and that the same has since been, and now is, operated by the defendant company, with offices permanently established thereon, and officers duly appointed thereto; :in charge of the business thereof. Such being the facts, we are called upon to decide whether the defendant company is exempt from suit brought in this court. Without uIl:dertaking to cite the numerous cases (federal and state) the subject, we think we are safe in saying that it is now bearing firmly settled that when a corporation created by the laws of one state voluntarily comes, by its officers or agents, within the jurisdiction of another state, and there engages in business, it becomes amenable to the process of the courts of the latter state, if the laws thereof make provisIn one of the cases (Insurance Co. v. Duerson, 28 ion to that Grat. 630) it was declared by the court of appeals of Virginia that the corporation, for the purpose of being sued, is to be considered as having a domicile in the state where it has thus voluntarily located; and in the case of Insurance Co. v. Woodworth, 111 U. S. 138, 145,147,4 Sup. Rep. 364, the supreme court of the United States did distinctly hold that a company incorporated in one state, by doing business and having an agent upon whom service may be made in another state, may there acquire another domicile, so a'l to give locality there to a debt on a policy of insurance as the foundation of administration in the latter state. That the defendant corporation is suable in the courts of Pennsylvania, and that such service as we have in this case would be a good service in the courts ofthe state, is undeniable. Hagerman v. Slate Co., 97 Pa. St. 534; Act March 21, 1849, (Punl. Dig. 355.) What good reason, then, is there for exempting the company from suit in a federal court sitting in Pennsylvania? Can it be supposed that such was the intention of congress? Under previous laws a person was suable in any district in which he might be found. Although he might have been a mere sojourner in, or was simply passing through, the district, he was liable to be served therein with process from a federal court. This was the mischief which congress intended to remedy by omitting from the act of 1887 the words "or in which he shall be found." But, clearly, under the provisions of the act of 1887, if a citizen of a state, without changing, or intending to change, his citizenship, becomes an inhabitant of another state, or, in other words, has his domicile or fixed residence therein, he is suable in the latter state by original process from a federal court. Parker v. Over'man, 18 How. 137. Now, in our judgment it was not the intention of the act to make any distinction in respect to liability to suit between natural persons and corporations. As a corporation is a" person" within the meaning of the act, so, also, may it be an "inhabitant." Under the facts of this case we are clearly of the opinion that the de-
292
FEDERAl, REPottTER, vol.
39.
fendant corporation is an inhabitant of the Western district of vania, within the meaning of the act of congress of 1887, and therefore' that this court has acquired lawful jurisdiction of this suit. We are aware that our conclusion is at variance with that of Judge LACOMBE in Filli, v. Railroad Co.,37 Fed. Rep. 65, but, on the other hand, we are in accord with the decision of Judge MAXEY in Zambrino v. Railway Co., 38 Fed. Rep. 449, and we may add that the opinion in the latter case is so full in the citation of authorities, and the reasoning of the learned judge in support of the jurisdiction of the court is so convincing, that we deem it quite unnecessary for us to discuss the question any further. And now, July 9, 1889, thernotion to set ,aside the service of the writ of summons is denied, and it is ordered that the time for the defendant to answer the plaintiffs' statement of claim shall run from this date.
SNYDER'S ADM'RS
v.
MeCO"MB'S
Ex'x. 1
(Oircuit Oourt, D. Delawa?'e.
July 3, 1889.)
1.
TRUSTS-DECLARATION-EvIDENCE.
2.
Where an express trust created by act of parties has been admitted by the trustee to exist, but with a qualification, there has been no adverse possession and the trust is not barred by lapse of time. SAME-LIABILITY OF TltUS'l'EE.
3.
The trustee of certain shares of stock sold very advantageously other shares of the same stock standing in his own name. and transferred the trust stock to same parties without consideration. When urged subsequently by the cestui que tr,ust, whom he had not informed of either transaction, to dispose of the trust stock, he, although in a position to know that its value wonld in a few days be only nominal, dissuaded him from selling, alleging its great value. Held, that the trustee was, liable for want of full and faithful performance of trust, and that the cestui que trust was not compellable to receive worthless shares in satisfaction. SAME-MEASURE OF LIABILITY-CORPORATION STOCK.
4,
A trustee, who has in had faith prevented a sale of his trust stock while it was of value, is liable to his cestui que trust, in the absence of proof of market value of shares when the sale conld have been made, and of the receipt of any dividends or interest by the shareholders for the amount paid in, with interest, from the time the trust was acknowledged.
O.
SA}IE-CORPORATIONS-STOCK-EvIDENCE OF VALUE.
A sale of stocll: under conditions, among others, that the vendor would receive it back at an advanced price, and offers to purchase and statements of value, intended evidently only to inflate the stock, are not evidences of value. by Wilks Collet, Esq., of the Philadelphia bar.
1 Reported