Where four persons made a contract with a citizen of Ohio, and
three of the four were citizens of Indiana, and suit was brought
against the three in the Circuit Court of the United States for
Indiana, the nonjoinder of the fourth was justified by the act of
1839, 5 Stat. 321
The decision at the present term, in the case of
Hill v.
Smith, again affirmed.
On the 18th of March, 1857, Hiram Clearwater, a citizen of Ohio,
brought a suit against Johnson Meredith, and Tyner, citizens of
Indiana; and in the declaration said, that the
"defendants, together with one Caleb B. Smith, who, at the time
of the commencement of this suit, was not a citizen of the State of
Indiana, and is therefore not joined as a defendant herein, made
and delivered to the plaintiff their certain written
agreement,"
&c.
The cause of action was a written agreement, signed by the four
persons above named, guaranteeing that the stock in a railroad
company should be at par within a certain time, in consideration
that Clearwater had executed a deed of conveyance of land to
Meredith, to whom the same had been sold by the company, Clearwater
having previously contracted to sell it to the company.
The three defendants named in the caption appeared and filed the
following demurrer:
"The said defendants, by counsel, come and say the declaration
of the said plaintiff, and the several counts therein contained,
are severally insufficient in law to enable said plaintiff to have
and maintain his action against said defendants, and for cause of
demurrer shows to the court the following:"
"1. The jurisdiction of the court is not shown by proper
averment."
"2. No sufficient consideration is shown for the
undertaking."
"3. The several counts do not contain facts sufficient to
constitute a cause of action. "
Page 62 U. S. 490
This demurrer was sustained by the court below, and a writ of
error brought this ruling before this Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The plaintiff, who is averred to be a citizen of the State of
Ohio, brought his action against Solomon Meredith and Thomas Tyner,
citizens of Indiana, on the 12th July, 1853, together with Caleb B.
Smith, who, at the time of the commencement of this suit was not a
citizen of the State of Indiana, and is therefore not joined as a
defendant herein &c.
Page 62 U. S. 491
The declaration has three counts, one of which contains the
following guarantee:
"Whereas Hiram Clearwater, of the City of Cincinnati, on the 6th
of May, 1853, contracted with the Cincinnati, Cambridge &
Chicago Short Line Railway Company for the sale of a tract of land
situate in Wayne County, Indiana, lying on the national road about
four miles east of Cambridge City and adjoining the lands of John
Jacobs and others, containing three hundred and twenty acres, for
the consideration of ten thousand dollars, to be paid in the
capital stock of said company at par, and whereas, in such contract
of sale, it was agreed that said company should furnish to said
Clearwater a guarantee that the capital stock of said railway
company should be at par within one year from the completion of the
entire line of said road, now in consideration that the said H.
Clearwater has, with the consent of the said company and at our
request, executed a deed of conveyance to Solomon Meredith for said
land, to whom the same has been sold by the said company, we, the
undersigned, hereby guarantee that the said stock of said company,
which has been issued to said Clearwater in pursuance of said
contract, shall be worth par in the City of Cincinnati within one
year from the time the said railroad shall be completed from
Cincinnati to Newcastle, Indiana, and that said road shall be
completed within two years from the 1st day of October, 1853, and
signed by Pleasant Johnson S. Meredith, Caleb B. Smith, and Thomas
Tyner."
The defendants, by counsel, come and say the declaration of the
said plaintiff and the counts therein contained are severally
insufficient in law to enable said plaintiff to have and maintain
his action against said defendants; and for cause of demurrer shows
to the court the following:
1. The jurisdiction of the court is not shown by proper
averment.
2. No consideration is shown for the undertaking.
3. The several counts do not contain facts sufficient to
constitute a cause of action; wherefore the defendants pray
judgment &c.
If this be regarded as a plea to the jurisdiction of the
court,
Page 62 U. S. 492
it is argued that the suit is brought on a joint contract
executed by the defendants in error, when only two of them were
served with process, and the third one, Caleb B. Smith, who, at the
time of the commencement of the suit, was not a citizen of the
State of Indiana, and is therefore not joined as a defendant herein
&c.
The first section of the Act of February 28, 1839, provides
that
"Where, in any suit at law or in equity commenced in any court
of the United States, there shall be several defendants, any one or
more of whom shall not be inhabitants of or found within the
district where the suit is brought or shall not voluntarily appear
thereto, it shall be lawful for the court to entertain jurisdiction
and proceed to the trial and adjudication of such suit between the
parties who may be properly before it, but the judgment or decree
rendered therein shall not conclude or prejudice other parties not
regularly served with process or not voluntarily appearing to
answer."
In the case of
Railroad Bank of Vicksburg
v. Slocomb, 14 Pet. 65, it is said the 11th section
of the Judiciary Act declares that no civil suit shall be brought
before either of said courts against an inhabitant of the United
States by any original process in any other district than that
whereof he is an inhabitant or in which he shall be found at the
time of serving the writ.
It has been held that this is a personal privilege of not being
sued out of the district in which the defendant may live or in
which he shall be found on serving the writ, and that it may be
waived by the defendant. And it is said in the above opinion
"that it did not contemplate a change in the jurisdiction of the
courts, as it regards the character of the parties, as prescribed
by the Judiciary Act, and expounded by this Court -- that is that
each of the plaintiffs must be capable of suing and each of the
defendants capable of being sued, which is not the case in this
suit, some of the defendants being citizens of the same state with
the plaintiffs."
It is well known that the act of 1839 was intended so to modify
the jurisdiction of the circuit court as to make it more practical
and effective. Where one or more of the defendants
Page 62 U. S. 493
sued were citizens of the state, and were jointly bound with
those who were citizens of other states, and who did not
voluntarily appear, the plaintiff had a right to prosecute his suit
to judgment against those who were served with process; but such
judgment or decree shall not prejudice other parties not served
with process, or who do not voluntarily appear.
Now it is too clear for controversy that the act of 1839 did
intend to change the character of the parties to the suit. The
plaintiff may sue in the circuit court any part of the defendants,
although others may be jointly bound by the contract who are
citizens of other states. The defendants who are citizens of other
states are not prejudiced by this procedure, but those on whom
process has been served and who are made amenable to the
jurisdiction of the court.
And in regard to those whose rights are in no respect affected
by the judgment or decree, it can be of no importance of what
states they are citizens. If one of the defendants should be a
citizen of the same state with the plaintiff, no jurisdiction could
be exercised as between them and no prejudice to the rights of
either could be done.
The plea to the jurisdiction seems not to be well taken, and it
cannot be sustained.
In the case of
Hill v. Smith, decided at the present
term, this Court held that the demurrer filed to the counts on the
guarantee did not bring up the validity of that instrument for the
action of the court, and that it must be specially pleaded, with
suitable averments. And the Court reversed the judgment, and
remanded it to the circuit court with leave, on the payment of
costs, to move to amend the pleadings so as to raise the questions
on the guarantee. The same order is made in the present case.
Judgment reversed.