Stalker v. Pullman's Palace-Car Co.

U.S. Circuit Court for the District of Southern California

Stalker v. Pullman's Palace-Car Co.

81 F. 989, 1895 U.S. App. LEXIS 3524

CourtU.S. Circuit Court for the District of Southern California

DecidedMay 1, 1895

StatusPublished

Cited by10 cases

This text of 81 F. 989 (Stalker v. Pullman's Palace-Car Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stalker v. Pullman's Palace-Car Co., 81 F. 989, 1895 U.S. App. LEXIS 3524 (circtsdca 1895).

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Opinion

ROSS, Circuit Judge.

The plaintiff, a British subject, commenced this suit in one of the superior courts of the state, against a corporation organized and existing under the laws of the state of Illinois, to recover damages in the sum of $20,000 for personal injuries.. The defendant filed in the superior court a petition and bond for the removal of the cause to this court. The bond was approved, aud an order of transfer entered, and here the defendant appeared specially for the purpose, and moved the court to set aside the service of process made in the state court, upon the coming on of which for argument, the plaintiff moved the court to remand the case to the state court, upon the ground that it was improperly brought here, and also made a motion that, in the event the motion to remand be denied, the plaintiff he allowed to amend the return of service of process, to which latter motion the defendant objected, for the reason that no notice thereof had been given.

The motion to remand must be denied, under the ruling of the supreme court made in the case of Railroad Co. v. Davidson, 15 Sup. Ct. 563, in which that court held that section 2 of the judiciary act of 1887, as amended by the act of 1888, refers to the first j>art of section 1 of the same act, by which jurisdiction is conferred on the circuit courts, and not to the clause thereof relating to the district in which suit may be brought, which restriction, as has been repeatedly held, is but a personal privilege of the defendant, and may he [990]*990waived by him. The necessary result of this ruling is that this court would have had original jurisdiction of the present suit by virtue of the first section of the act of 1887, as corrected by that of 188S, subject to the exercise of the personal privilege conferred upon the defendant by the restrictive clause referred to.

A* ruling upon the motion of the defendant to set aside the service of process made in the state court should, I think, be withheld until the plaintiff has had an opportunity to give notice of his motion to amend the return of service of such process.

Motion to remand denied.

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ROSS, Circuit Judge.

The plaintiff, a British subject, commenced this suit in one of the superior courts of the state, against a corporation organized and existing under the laws of the state of Illinois, to recover damages in the sum of $20,000 for personal injuries.. The defendant filed in the superior court a petition and bond for the removal of the cause to this court. The bond was approved, aud an order of transfer entered, and here the defendant appeared specially for the purpose, and moved the court to set aside the service of process made in the state court, upon the coming on of which for argument, the plaintiff moved the court to remand the case to the state court, upon the ground that it was improperly brought here, and also made a motion that, in the event the motion to remand be denied, the plaintiff he allowed to amend the return of service of process, to which latter motion the defendant objected, for the reason that no notice thereof had been given.

The motion to remand must be denied, under the ruling of the supreme court made in the case of Railroad Co. v. Davidson, 15 Sup. Ct. 563, in which that court held that section 2 of the judiciary act of 1887, as amended by the act of 1888, refers to the first j>art of section 1 of the same act, by which jurisdiction is conferred on the circuit courts, and not to the clause thereof relating to the district in which suit may be brought, which restriction, as has been repeatedly held, is but a personal privilege of the defendant, and may he [990]*990waived by him. The necessary result of this ruling is that this court would have had original jurisdiction of the present suit by virtue of the first section of the act of 1887, as corrected by that of 188S, subject to the exercise of the personal privilege conferred upon the defendant by the restrictive clause referred to.

A* ruling upon the motion of the defendant to set aside the service of process made in the state court should, I think, be withheld until the plaintiff has had an opportunity to give notice of his motion to amend the return of service of such process.

Motion to remand denied.

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Bluebook (online)

81 F. 989, 1895 U.S. App. LEXIS 3524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stalker-v-pullmans-palace-car-co-circtsdca-1895.

Opinion

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