1. The objection that a suit in the district court between
citizens of different states was not brought in the district of the
residence of either goes only to the venue, and is waived when the
defendant, though duly summoned, remains passive, neither answering
nor appearing, and suffers judgment by default. P.
278 U. S.
179.
2. The waiver in such case results also under § 1311, Ohio
Gen.Code, the objection to venue being apparent on the face of the
plaintiff's petition. P.
278 U. S.
180.
Response to a question certified by the circuit court of
appeals.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
We here are concerned with a certificate wherein the Circuit
Court of Appeals for the Sixth Circuit, pursuant to § 346, Title
28, United States Code, propounds a question of law arising in a
case pending in that court.
Page 278 U. S. 178
The material facts are: a corporation of Indiana brought a
transitory action at law against a corporation of New Jersey in a
federal district court in Ohio. That court's jurisdiction was
invoked only on the ground that the parties were citizens of
different states, and the value of the matter in controversy was in
excess of the statutory requirement. The defendant was doing
business in Ohio and, in accord with the state law, had designated
a local agent upon whom process against it might be served. Summons
was duly served within the district upon that agent. The defendant
neither appeared nor answered within the period limited therefor,
and judgment went against it by default. Later in the same term,
the defendant moved that the judgment be vacated and the action
dismissed because the action was brought in a district in which
neither party resided. That motion was denied. The defendant then
moved that the judgment be vacated, and leave to defend be granted,
on the asserted ground that the summons, although forwarded by the
agent to the defendant's home office, had been overlooked. That
motion also was denied. The defendant then sued out a writ of error
from the circuit court of appeals. The certificate, after
eliminating the ruling on the second motion, says of the asserted
basis of the first motion:
"Familiar cases say that this defect in the jurisdiction
pertains to the venue, and defendant may either insist upon it or
may waive it. In this case, there was neither affirmative
insistence nor affirmative waiver. Defendant allowed the time for
effective objections to expire, and did nothing."
Shortly stated, the question propounded is whether it was open
to the defendant, after permitting the cause to proceed to judgment
by default, to object that the action was not brought in the
district of the residence of either party.
Page 278 U. S. 179
The pertinent statutes are §§ 41 and 112, Title 28, United
States Code. One provides that district courts shall have "original
jurisdiction" of certain classes of civil suits, including suits
"between citizens of different states," where the value of the
matter in controversy, exclusive of interest and costs, exceeds
$3,000. The other provides that,
"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."
These provisions often have been examined and construed by this
Court. Summarized, the decisions are directly to the effect that
the first provision invests each of the district courts with
general jurisdiction of all civil suits between citizens of
different states where the matter in controversy is of the
requisite pecuniary value, and that the other provision does not
detract from that general jurisdiction, but merely accords to the
defendant a personal privilege respecting the venue, or place of
suit, which he may assert, or may waive at his election. [
Footnote 1]
The decisions also make it plain that the privilege must be
"seasonably" asserted, else it is waived. [
Footnote 2] Whether there was a seasonable assertion in
the present case is the real question to be determined.
We are of opinion that the privilege is of such a nature that it
must be asserted, at latest, before the expiration of the period
allotted for entering a general appearance and
Page 278 U. S. 180
challenging the merits. In ordinary course, when that period
expires the defendant either will have appeared generally for the
purpose of contesting the merits or, by suffering a default, will
have assented that his adversary's allegations be taken as
confessed for the purposes of judgment. In either event, the suit
will have reached the stage where attention must be given to the
merits. In common practice, objections to venue are presented and
acted upon at an earlier stage, and this, so far as we are advised,
is true of the elective privilege here in question. No adjudged
case is cited in which a different practice is either sustained or
shown. To hold that such a privilege may be retained until after
the suit has reached the stage for dealing with the merits, and
then be asserted, would be, in our opinion, subversive of orderly
procedure and make for harmful delay and confusion.
It was apparent on the face of the plaintiff's petition that
jurisdiction was grounded solely on diversity of citizenship and
that the suit was brought in a district of which neither party was
a resident. The defendant, although duly served with a proper
summons apprising it of the time within which it was required to
appear and answer, permitted that time to elapse without making any
objection to the venue, or place of suit, by motion, pleading or
otherwise.
The Ohio practice statute prescribes that all objections thus
appearing when so neglected shall be deemed to have been waived
"except only that the court has no jurisdiction of the
subject[-matter] of the action, and that the petition does not
state facts which show a cause of action."
Gen.Code Ohio, § 11311.
Here, the objection was not that the court was without
jurisdiction of the subject matter of the suit, but that the suit
was not brought in the district of the residence of either party --
a waivable matter of venue only. [
Footnote 3]
Page 278 U. S. 181
Our conclusion is that the objection was not seasonably made,
and therefore that, under our decisions, as also the Ohio statute,
it was waived. The question before stated must be answered in the
negative. A second or alternative question is propounded in the
certificate, but an answer to it is rendered unnecessary by the
answer to the other.
Question No. 1 answered No.
[
Footnote 1]
Lee v. Chesapeake & Ohio Ry. Co., 260 U.
S. 653,
260 U. S. 655,
and cases cited;
Peoria & Pekin Union Ry. Co. v. United
States, 263 U. S. 528,
263 U. S.
535-536;
Panama R. Co. v. Johnson, 264 U.
S. 375,
264 U. S.
383-385;
Seaboard Rice Milling Co. v. Chicago, Rock
Island & Pacific Ry. Co., 270 U.
S. 363,
270 U. S. 365;
Great Northern Ry. Co. v. Galbreath Cattle Co.,
271 U. S. 99,
271 U. S.
102-103.
[
Footnote 2]
Martin v. Baltimore & Ohio R. Co., 151 U.
S. 673,
151 U. S. 688;
In re Keasbey & Mattison Co., 160 U.
S. 221,
160 U. S.
229-231;
General Investment Co. v. Lake Shore Ry.
Co., 260 U. S. 261,
260 U. S.
273.
[
Footnote 3]
Peoria & Pekin Union Ry. Co. v. United States,
supra.