Craig v. Cummings

6 F. Cas. 724, 2 Wash. C. C. 505

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: January 15, 1811
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

delivered the opinion of the court.

If J. P. had been served with process in this case,he might have pleaded to the ’jurisdicfion. of the court, because, by the 11th section of the judicial law [of 1789 (1 Stat. 79)], the court cannot entertain the suit except an alien be a party, or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. But neither Craig nor J. P. is a citizen of this state, where the suit is brought. It is true, that under another clause of this section, it is not necessary that the defendant 'should be an inhabitant of the state in which the suit is brought, if he be there served with the process; but if he be not an inhabitant of that state, the plaintiff must be, in order to give jurisdiction to that court; and therefore, J. P. might well be sued in the circuit court of Kentucky, where the plaintiff is an inhabitant, if the process were there served upon him.

But the question in this case is, can Cummings avail himself of the want of jurisdiction, in respect to his associate in the writ, but who is not declared against? It is admitted at the bar, that by the law and practice of this state, if the sheriff return non est inventus as to one defendant, and service of the writ on the other, the plaintiff may proceed against the latter singly, though upon a joint contract, stating in his declaration the return oh the writ. This being the case, there can exist no good reason why the defendant who is served with the process, should avail himself of the want of jurisdiction in the court, as to the other person named in the writ, who is severed from him, and is no longer to be considered as a defendant in the cause. Demurrer sustained.