449
(Circuit Court, W.
Michigan, :Nc'])',
22, 1890.)
JURISDICTION-AcCEPTANCE OF SERVICE.
Acceptance of service 1::l.eing merely eqqivalent 'to personal service in the district, does not prevent a defendant from moving to dismiss the suit because brought in a. district which he does not reside.
At Law.
On motion to dismiss. L. G. Palmer" pist. Atty., for the U WebBtel' &, Wheeler, for defendants.
SEVERENS, J. In this caUse a motion is made to dismiss upon the ground that the. defendants are citizens anll inhabitants of the state of Wisconsin. It appears that due service of process was accepted bY' the attorney for the defendants, within the district, by his to that effect upon the declaration, by which and a rule to plead the8uit was originated. This was done to save the trouble and cost of personal service on the defendants, who were within the district, but wished to leave the state, and had actually left Marquette before the papers were ready fqr For convenience the acceptance of service was apparently understood as a substitute for personal service. It also appears that there was an oral agreement between the attorney for the United States and the attorney for defendants that it was a' condition of. the agreement thtls to accept servi<le that the cause should not be brought to trial at the next term of the court. By the third special common-law rule of the courts in the districts of Michigan it is provided that no private agreement between the parties or their attorneys respecting the proceedings in.a cause shall be binding unless it be in writing. This rule would render null the oral agreement above referred to, and leave the matter in the same situation as if it had not been made. The question wOuld then arise whethet the acceptance of service would be equivalent toa submission to the jurisdiction of the court. Without such submission, the defendants could not be sued in this district, the suit not; being one in which the jurisdiction is founded on the diverse citizenship of parties. Act Aug. 13, 1888, §l. I am of opinion that the objection was one which could be waived by the defendants, the provision in .the act referred to having regard only to the place where the suit should be brought and tried. Jurisdiction is given by a former provision in the same section. In the circumstances of this case I do not think the acceptance of service amonnted to more than :l. personal service of process made in the common conrse. The waiver, to be binding, ought to be dearly manifested, and the court ought not to hold the defendants for trial here upon a strained construction of the action and conduct of the parties. If any forward step or valid stipulation looking to further proceedings had been made in the case the result would be different; but there having been none, my opinion is that the case must be dismissed. The proper order must be entered accordingly. v.43F.no.7 -29
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(01Jrcuit Oourt. L
E. D. Missouri, E.'i{' Beptember96, 1890:)
The complaint alleged that defendants hadappropl'latecl and were using on their advertisements, circulars, letter beads, etc.,·relating to their pub1ication; the :device of an open book which complainants ;had, theretofore, been in the babit of using for like purposes;. that defendants used the words "Webster's Dictionary" . placll,Un.;t;lie s.,me,relllotl0n !botbeil!p'qbliQationtbat'complainimts.place it; that the theti. was,giren as of the.year 1800, when,. . in fact,the bb'okwas a reprintorllhotolithographlc copy of the edition .that, intent OIl- defendants', paJ't; to , get the ofthe of the ec1ition of Wll]:lster'lI Dictionary pqblished , by oomt>lilin81'tts; -and 'as tbepubrici 'migl1t possibly·l)tj deceived' to complai'rlatits' I :daJl1"ge, in of the'factB averred, .a. demurrer to tbEl complaint,would be' I.',.} i.,.: :""'''I[ . : " .· ' . . ·" , . ' ' . I .' ... 9. l'ROT1!,JTEDT WBBSTER'S :DICTIONART., ' . . : , The. copyrlgllt.' 'of Webster's! Dldtilonarr havlDg expired, no one has anyspec1al J!r0pelitYjn '., " 8. .. .. . . ". . · ' .' . . .A:deniur'i'ertO' awliol'e' \\i1l'Diu'stfbeoverruledlf the bin: taken altogether entitles sOIlle kind of ' " ...:. '.; }, d' ,r; !' i (! :',' ; I , :','; 11
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diffieulty in these cases controversy tfuat we bad in tbe(J8se of, Stephenav,. ,460; (ju.st decidfed.) ',Tbedifficultyis that the< parties tQ,the ,whole randofcou,rse if:therejsany one thing iqthe. bill that ill: gQpd,-ctbat cis',t<> say, if th& bill taken altogether enti,.· tlEl!! to some. of relief,-the, demurrer should be: in in a law case wants to demur to, a k>f a. bill, at, ,declaration, he should not frame: ,his de-; BP: as to call the, whole bill in. :quea.' xqurrer as "",'. '. : tion·. ' ' ' ' :. !,laIn a right of action growing otltof, t4e 41legeQ,faQt.tbnt Jtbaidet:endants have appropriated the device of an which! deviCe! the complainants have ihithertobeen intbe habit of circulars, letter: heads l etc.:" Thill. as,W:-eundetstand it, is also used bytbedefend.., ants :olil: ,th!:lil'; , hell etc. ,Tha:t device so appropriated: trllde-markj but I ban Bee no good reason;! w.hyr mark or de-: vj.pe on their:' letter heads, adver:tiaements, and oiroulars, whioh .the com-' . It.looks'a&: though there might. be enough-in this' fact stated in the bill, tQ .oourt,{rom sustaining a general :de-
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