
    McCORMICK HARVESTING MACHINE COMPANY v. WALTHERS.
    ERROR TO THE OXROUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.
    No. 1402.
    Submitted January 27, 1890.
    Decided March 3, 1890.
    Wien the jurisdiction of a Circuit Court of the United States is founded upon any of the causes specially mentioned in section 1 of the act of March 3, 1887, as amended hy the act of August 13, 1888, 25 Stat. 433', c. 866, (except the citizenship of the parties,) the action must he brought in the district of which the defendant is an inhabitant; but where the jurisdiction is founded solely upon the fact that the parties are citizens of different States, the suit may be brought in the district in which either the plaintiff or the defendant resides.
    Motion to dishiss or affirh. Tbe case is stated in the opinion.
    
      Mr. N. ¿S[. Harwood and Mr. John H. Ames for the motion.
    
      Mr. Walter J. Ja/mb, Mr. Arnott Q. Hioketts and Mr. Henry H. Wilson opposing.
   Mr. Chief Justice Fuller

delivered the opinion of the court.

Walthers brought his action on the 21st day of July, 1887, in the Circuit Court of the United States for the District of Nebraska, against The McCormick Harvesting Machine Company, alleging that he was a citizen arid resident of the State of Nebraska, and that the defendant was a corporation drily incorporated and existing under the laws of the State of Illinois, “ but having a local habitation and managing agent in Nebraska,” for falsely and maliciously, and without probable or reasonable cause, suing out two attachments against’ him, and.- placed his damages at $10,500, for which he asked judgment and costs. The defendant answered1; justifying the issuing of the writs of attachment and denying any liability by reason thereof; and also pleaded in set-off and counter-claim two judgments against Walthers, one for $957.93 and $28 costs, and one foi $2894.01 and $26 costs, both bearing interest at ten p.er centum per annum' from June, 1887; and prayed judgment against the plaintiff for said several sums and for interest and costs. Subsequently leave was granted to' the -McCormick Company to withdraw its answer and to filó a plea, which averred “ that now and at the commencement of this action the said Charles W Walthers was a citizen and inhabitant of the State of Nebraska, and this defendant was a corporation duly organized under the laws of, the State of Illinois, and was and is a citizen; resident and inhabitant of the State of- Illinois, and was not and is not a citizen, resident or inhabitant-of the State or District of Nebraska; that a summons in this action was served on this defendant’s agent in the State of Nebraska, where this defendant has an office, said agent being only its local' managing agent for its business in Nebraska; and this defendant says that this action was brought since the 15th day of March, 1887; and this defendant says that it is not subject to be sued or to be summoned by original process out of this court in this cause in this judicial district; ” and defendant prayed judgment that the action might be- abated.

This plea was upon hearing overruled, and the defendant ruled to-answer-in thirty days, and plaintiff to reply'in forty-five days, and a reply in general denial of the answer was filed, the answer being, treated as if still a pending pleading. • The case • came on for trial and resulted in a verdict for the plain-. tiff, assessing his damages in the sum of $1338.57, upon which judgment was entered. A motion for a new trial was made and denied, and a writ of error sued out from this court, which ■the defendant in error now moves to dismiss, uniting with that motion a motion to affirm.

No bill of exceptions was taken, and the denial of the jurisdiction of the Circuit Court is the only question which can be ■raised upon the record. And this has no relation to the mode of service. The defendant was a foreign corporation, and the statute - of .Nebraska provided that “ when the' defendant is a foreign .corporation, having a managing. agent in this State, the service-may be upon such agent.” • Code Civ. Proc. Nebraska, 75; Comp. Stats. Neb. 1881, 539; 1885, 637. The plea admits service upon the company’s local managing agent, and as the defendant entered full appearance and answer, and, after the withdrawal of the answer and the filing of the plea and its disposition, went to trial on the merits upon issue joined on that answer, the objection to the jurisdiction, if it can be urged at all, must be confined to want of power to entertain the suit outside of defendant’s own district.

By section 1 of the act of March 3, 1887, 24' Stat. 552, c. 373, as corrected by the act of August 13, 1888, 25 Stat. 433, c. 866, to amend-the act of March '3, 1875, determining the jurisdiction of the Circuit Courts of the- United States, and regulating the removal of causes from the state courts and for other purposes, it was provide^-: “But no person shall- be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit 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 States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” The jurisdiction common to all the Circuit Courts of the-United States in respect to the subject matter of the; suit and the character of- thé parties who might sustain suits in those courts, is de-' scribed in the section, while the foregoing clause relates-to the district in which a suit may be originally brought. Where the jurisdiction is founded, upon any of the causes mentioned in this section, except the- citizenship' of .the' parties, it. must be brought in the district of which' the defendant is' an inhabitant; but where the jurisdiction is .founded solely upon the fact that the parties are citizens of different states, the suit may be brought in the district in which either the plaintiff or the defendant resides.- “ The concluding lines,” said' Mr. Justice Field in Wilson v. Western Union Telegraph Co., 34 Fed. Rep. 561, “ are to be read as-a proviso to the general provision that no civil suit.shall be brought except in the district whereof the defendant is an inhabitant.” This conclusion was reached and announced by many of the Circuit Courts, and there can be no doubt of its correctness. Fales v. Chicago, Milwaukee &c. Railway, 32 Fed. Rep. 673; St. Louis &c. Railroad v. Terre Haute &c. Railroad, 33 Fed. Rep. 385; Loomis v. N. Y. & Cleveland Gas Co., 33 Fed. Rep. 353; Gavin v. Vance, 33 Fed. Rep. 84;. Swayne v. Boylston Insurance Co., 35 Fed. Rep. 1.

The' judiciary act of 1789 provided that no civil suit should 'be brought before the Circuit' or District Courts against an inhabitant of the United State's by any original process in any other district than that whereof he was an inhabitant or in 'which-- he should be found at the time of serving the writ, 1. St'at. 79, c. 20, § 12, and the act of 1875, 18 Stat. 470, c. 137, § 1, contained a similar provision. This liability of the defendant to' be sued in a district where he might be found at the time of serving process was omitted in the act of 1887, but he''still remained liable, to suit in the district of the residence of the .plaintiff as well as in his own district; and as he could not be sued anywhere else, we held in Smith v. Lyon, 133 U. S. 315, that where there_were (iwo plaintiffs, citizens of different-States, the defendant, being a citizen of another State, could not be sued in the State of either of the plaintiffs. Mr. Justice Miller points out, in delivering the opinion of the court, that the evident purpose of Congress in the act of 1887 was to restrict rather than enlarge the jurisdiction of the Circuit Court, “ while,” he'says, “ at the same time a suit is permitted "to be "brought in any district where either plaintiff or defend-ánt resides.”

The defendant answered .to the merits in this case, and was. then permitted to filé the plea in question for the purpose of insisting that it was not subject to suit in.a United. States court in ,the district of the plaintiff’s residence. Upon the-overruling of this plea, tKé caüse' proceeded to trial on the. merits upon the issues made .up on-the .complaint,, answer and replication,, the .trial continuing for several .days, both parties appearing by their attorneys, adducing testimony, and arguing the case to the jury. Under these circumstances, there being no- question whatever presented- by the record, except whether the defendant was liable' to 'be sued in the Circuit Court of the United States for the District of Nebraska, and it being clear that it was, and there being color for the motion to dismiss, we sustain the motion to affirm, as we do not heed further argument on that question.

Judgment affirmed.  