Von Voight v. Michigan Cent. R. Co.

130 F. 398, 1904 U.S. App. LEXIS 4817

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: May 11, 1904
• Status: Published

Opinion

HOET, District Judge.

The allegation that the plaintiff is a citizen of the British Empire is not a sufficient allegation that the plaintiff is an alien, and the subject or citizen of some one foreign power. Stuart v. Easton, 156 U. S. 46, 15 Sup. Ct. 268, 39 L. Ed. 341; Rondot v. Township of Rogers, 79 Fed. 676, 25 C. C. A. 145. If the complaint had properly • alleged that the plaintiff was an alien, the court, in my opinion, would have jurisdiction. The defendant, being a corporation organized under the laws of Michigan, could object to being sued in this district; but the right to be sued in the district of which it is a resident is not strictly jurisdictional, but is a personal privilege, which can be waived. St. Louis, etc., Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659. I think it was waived by a general appearance.

My conclusion is that the demurrer should be sustained, with leave to plaintiff to amend within 20 days upon payment of costs.