Opinion · Supreme Court of the United States

Neirbo Co. v. Bethlehem Shipbuilding Corp.

Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1939-11-22
Topic
general

How later courts describe this case

  • holding that a defense of lack of personal jurisdiction or improper venue “may be lost by failure to assert it seasonably”
  • concluding that the right to object to venue is a “privilege” afforded to defendants that must be'“asserted .seasonably”
  • recognizing that jurisdiction limits a court’s “power to adjudicate” while venue is a “litigant’s convenience” that “may be lost by failure to assert it seasonably”
  • holding a corporation expressly consented to personal jurisdiction in New York by designating a registered agent to accept service of process
  • explaining that an unconditional guilty plea results in waiver of a challenge to the district court’s denial of a motion to suppress evidence
  • ruling personal jurisdiction “may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct”
  • finding that the defendant corporation waived its right to contest venue in federal court in New York, by complying with a New York State statute that required it to designate an agent for service of process
  • noting that the right to challenge defective service, “[b]eing a privilege ... may be lost. It may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.”

Citator

Neirbo Co. v. Bethlehem Shipbuilding Corp. has been questioned or limited by later authorities: relies on overruled authority: 27 S. Ct. 150 (overruled by Lee v. Chesapeake & Ohio Railway, 260 U.S. 653 (1923)). Read them before relying on it. 755 later decisions cite it.

Authority status
caution
Cited by
755 opinions

Headnotes

  1. Civil Procedure — Venue The federal venue statute merely accords to the defendant a personal privilege of objecting to the venue of suits brought against him in districts wherein he may not be compelled to answer; the statute does not limit the power of the court to adjudicate. 308 U.S. at 168
  2. Civil Procedure — Venue The personal privilege of objecting to venue may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct; whether such surrender of the immunity is conceived negatively as a waiver or positively as a consent to be sued is merely a matter of expression, the essence being that courts affix to conduct consequences as to the place of suit consistent with the policy behind the venue statute. 308 U.S. at 168
  3. Civil Procedure — Venue A designation by a foreign corporation, in conformity with a valid state statute and as a condition of doing business within the state, of an agent upon whom service of process may be made constitutes an effective consent to be sued in the federal courts of that state. 308 U.S. at 170, 174
  4. Civil Procedure — Venue The omission by the 1887 amendment of the words "in which he shall be found" from the venue provision was not intended to affect the implications of a consent to be sued and was not directed toward any change in the status of a corporate litigant; the restriction was designed to prevent service of process upon a natural person wherever he might be caught. 308 U.S. at 171
  5. Constitutional Law — Foreign Corporations — Service of Process A state constitutionally may require a foreign corporation, as a condition of doing a local business, to designate an agent upon whom service of process may be made. 308 U.S. at 175
  6. Civil Procedure — Venue A finding that a foreign corporation, by its designation under state law of an agent for service of process, consented to be sued in the courts of the state — federal as well as state — does not subject federal procedure to state law, but recognizes that state legislation and consent of parties may bring about a state of facts that authorizes the federal courts to take cognizance of a case. 308 U.S. at 175
NEIRBO CO.v. BETHLEHEM CORP.,308 U.S. 165(1939)
60 S.Ct. 153
NEIRBO CO. ET AL.v. BETHLEHEM SHIPBUILDING CORP., LTD.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
No. 38.
Argued October 17, 18, 1939.
Decided November 22, 1939.
1. Section 51 of the Judicial Code, as amended, which provides that "no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but 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," merely accords to the defendant a personal privilege of objecting to the venue of suits brought against him in districts wherein under the section he may not be compelled to answer. P. 168.Page 1662. The privilege accorded by § 51 may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct. P. 168. 3. Such surrender of the privilege may be regarded negatively as a waiver or positively as a consent to be sued. P. 168. 4. A designation by a foreign corporation, in conformity with a valid statute of a State and as a condition of doing business within it, of an agent upon whom service of process may be made,heldan effective consent to be sued in the federal courts of that State. Pp. 170, 174. 5. Prior to the amendment of 1887, the provision was that "no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, orin which he shall be found . . ." Held, the omission by that amendment of the words "in which he shall be found" was not intended to affect the implications of a consent to be sued and was not directed toward any change in the status of a corporate litigant.Ex parte Schollenberger,96 U.S. 369, andSouthern Pacific Co. v.Denton,146 U.S. 202, reconciled. P. 171. 6. A State constitutionally may require a foreign corporation, as a condition of doing a local business, to designate an agent upon whom service of process may be made. P. 175. 7. The finding in this case that the foreign corporation, by its designation under the state law of an agent for the service of process, had consented to be sued in the courts of the State, federal as well as state, is not a subjection of federal procedure to the requirements of state law, but a recognition that state legislation and consent of parties may bring about a state of facts which will authorize the federal courts to take cognizance of a case. P. 175.103 F.2d 765, reversed.
CERTIORARI,307 U.S. 619, to review the affirmance of an order
of the district court quashing service of process on the
respondent corporation and dismissing as to it the petitioners'
bill.
Messrs. Robert P. WeilandLaurence Arnold Tanzerfor petitioners.Mr. William D. Whitneyfor respondent.Page 167
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The case is here to review the affirmance by the Circuit Court of Appeals for the Second Circuit of an order of the District Court for the Southern District of New York setting aside service of process upon Bethlehem Shipbuilding Corporation, Ltd. (hereafter called Bethlehem) and dismissing as to it petitioners' bill,103 F.2d 765. The suit was based on diversity of citizenship and was not brought "in the district of the residence of either the plaintiff or the defendant." (§ 51 of the Judicial Code, Act of March 3, 1887,24 Stat. 552, as corrected by Act of August 13, 1888,25 Stat. 433,28 U.S.C. § 112.1) We took the case,307 U.S. 619, because of the uncertainties in application of § 51, emphasized by conflict between the views below and those of the Circuit Court of Appeals for the Tenth Circuit.OklahomaPacking Co. v.Oklahoma Gas Elec. Co.,100 F.2d 770. The sole question in the case is whether § 51 is satisfied by the designation by a foreign corporation of an agent for service of process, in conformity with the law of a state in which suit is brought against it in one of the federal courts for that state.

The jurisdiction of the federal courts — their power to adjudicate — is a grant of authority to them by Congress and thus beyond the scope of litigants to confer. ButPage 168the locality of a law suit — the place where judicial authority may be exercised — though defined by legislation relates to the convenience of litigants and as such is subject to their disposition. This basic difference between the court's power and the litigant's convenience is historic in the federal courts. After a period of confusing deviation it was firmly reestablished inGeneral Investment Co. v.Lake Shore Ry. Co.,260 U.S. 261, andLeev.Chesapeake Ohio Ry. Co., ibid. 653, over-rulingEx parte Wisner,203 U.S. 449, and qualifyingInre Moore,209 U.S. 490. All the parties may be non-residents of the district where suit is brought.Leev.Chesapeake OhioRy. Co., supra. Section 51 "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."Commercial Ins.Co. v.Stone Co.,278 U.S. 177,179.

Being a privilege, it may be lost. It may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.Commercial Ins. Co. v.Stone Co.,supra. Whether such surrender of a personal immunity be conceived negatively as a waiver or positively as a consent to be sued, is merely an expression of literary preference. The essence of the matter is that courts affix to conduct consequences as to place of suit consistent with the policy behind § 51, which is "to save defendants from inconveniences to which they might be subjected if they could be compelled to answer in any district, or wherever found."General Investment Co. v.Lake Shore Ry.Co., supra, at 275.

When the litigants are natural persons the conceptions underlying venue present relatively few problems in application. But in the case of corporate litigants these procedural problems are enmeshed in the wider intricacies touching the status of a corporation in our law. ThePage 169corporate device is one form of associated enterprise, and what the law in effect has done is to enforce rights and duties appropriate for collective activity. Cf.United Mine Workersv.Coronado Coal Co.,259 U.S. 344;Puerto Ricov.RussellCo.,288 U.S. 476. It has done so largely by assimilating corporations to natural persons. The long, tortuous evolution of the methods whereby foreign corporations gained access to courts or could be brought there, is the history of judicial groping for a reconciliation between the practical position achieved by the corporation in society and a natural desire to confine the powers of these artificial creations.2

It took half a century of litigation in this Court finally to confer on a corporation, through the use of a fiction,3citizenship in the chartering state for jurisdictional purposes. CompareLafayette Ins. Co. v.French, 18 How. 404 withHopeIns. Co. v.Boardman, 5 Cranch 57. Throughout, the mode of thought was metaphorical. The classic doctrine was that a corporation "must dwell in the place of its creation, and cannot migrate to another sovereignty."Bank of Augustav.Earle, 13 Pet. 519, 588. Logically applied, this theory of non-migration prevented suit in a non-chartering state, for the corporation could not be there.4And such was the practice of the circuit courts5until the opinion of Chief Justice Waite inEx parteSchollenberger,96 U.S. 369, displaced metaphor with common sense. The essential differencePage 170between the practice which Mr. Justice Nelson6initiated at circuit and the decision inSchollenberger'scase was not a matter of technical legal construction, but a way of looking at corporations. Men's minds had become habituated to corporate activities which crossed state lines. The fact that corporations did do business outside their originating bounds made intolerable their immunity from suit in the states of their activities. And so they were required by legislatures to designate agents for service of process in return for the privilege of doing local business. That service upon such an agent, in conformity with a valid state statute, constituted consent to be sued in the federal court and thereby supplanted the immunity as to venue, was the rationale ofSchollenberger'scase.

To be sure, that case arose under the Judiciary Act of 1875,18 Stat. 470, the language of which differed from the Act of 1887, now § 51 of the Judicial Code. The earlier provision was as follows: "And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found . . ." The Act of 1887 omitted the words "in which he shall be found." But, of course, the Phoenix and the Clinton Insurance Company inEx parteSchollenberger, supra, were not geographically "found" in Pennsylvania, and Chief Justice Waite so recognized. They were "found" in the Eastern District of Pennsylvania only in a metaphorical sense, because they had consented to be sued there by complying with the Pennsylvania law for designating an agent to accept service. Not less than three times does the opinion pointPage 171out that the corporation gave "consent" to be sued; and because of this consent the Chief Justice added that the corporation was "found" there. But the crux of the decision is its reliance upon two earlier cases,Railroad Companyv.Harris, 12 Wall. 65 andLafayette Ins. Co. v.French, 18 How. 404, recognizing that "consent" may give "venue." The Phoenix and the Clinton Insurance Company consented not to be "found" but to be sued. Since the corporation had consented to be sued in the courts of the state, this Court held that the consent extended to the federal courts sitting in that state. As to diversity cases, Congress has given the federal courts "cognizance, concurrent with the courts of the several States." The consent, therefore, extends to any court sitting in the state which applies the laws of the state.7

The notion that the 1887 amendment, by eliminating the right to sue a defendant in the district "in which he shall be found," was meant to affect the implications of a consent to be sued — implications which were the basis of theSchollenbergerdecision — derives from a misapplication of the purpose of Congress to contract diversity jurisdiction, based upon a misunderstanding of the legislative history of the 1887 amendment.8The deletion of "in which he shall be found" was not directed toward any change in the status of a corporate litigant. The restriction was designed to shut the door against service of process upon a natural person in any place where he might be caught. It confined suability, except with thePage 172defendant's consent, to the district of his physical habitation. Insofar as the 1887 legislation sheds any light upon the status of a corporate litigant in diversity suits, its significance lies outside the omission of the "he shall be found" clause. The form in which that Act passed the House of Representatives contained a provision, wholly distinct from the general venue section, restricting the growing volume of litigation drawn to the federal courts by the fiction of corporate citizenship.9It prohibited resort to the federal courts by foreign corporations authorized to do a local business. The Senate rejected, as it had done upon three previous occasions, this House proposal.10But the bill, as it left the House, also contained the venue provision, with its omission of the "found" clause. It would be strange indeed if the House in § 1 had dealt with the "venue" of suits against corporate litigants who, like those involved in theSchollenbergercase, by § 3 of the same bill were completely barred from the federal courts. It would be stranger still if, after passing a drastic measure curtailing resort by foreign corporations to the federal courts, the House had only succeeded in giving discriminatory freedom to foreign corporations — discriminatory in that, by nullifying the significance of consent through obedience to state law to be sued in the federal courts, it would allow aPage 173foreign corporate defendant freedom either to remain in the state courts or to remove to a federal court.

And so, after the Act of 1887 and despite its elimination of "in which he shall be found" from the Act of 1875, lower federal courts continued to apply the doctrine ofSchollenberger'scase by considering the designation of an agent for service of process an effective consent to be sued in the federal courts.11This practice in the lower federal courts continued until 1892, whenSouthern Pacific Co. v.Denton,146 U.S. 202, was decided. But that case involved an entirely different situation. The Court was there concerned with a Texas statute which not merely regulated procedure for suit but sought to deny foreign corporations access to the federal courts. This Court held the act unconstitutional, as the Texas court had in fact already done.12Inasmuch as the Texas act was found to be void, it "could give no validity or effect to any agreement or action of the corporation in obedience to its provisions."13To be sure, the Court went on to interpret the agreement "if valid"14and to suggest that had it been valid the agreement might have subjected the corporation to jurisdiction "so long as the Judiciary Acts of the United States allowed it to be sued in the district in which it was `found.'"15Such, as wePage 174have seen, was not the true basis of the decision inSchollenberger'scase. As decisions, the two cases are wholly consistent. But, disregarding the situation before the Court in theDentoncase — the absence of any valid consent to be sued because of the invalidity of the statute by which the alleged "consent" was obtained — several of the lower courts have taken language from theDentonopinion and have made it govern situations where valid consent did exist because given in conformity with the provisions of a valid statute.16Other courts have adhered to the practice established bySchollenberger'scase.17We deem this practice sound, and it controls the present case.

In conformity with what is now § 210 of the General Corporation Law of New York,18Bethlehem designatedPage 175"William J. Brown as the person upon whom a summons may be served within the State of New York." The scope and meaning of such a designation as part of the bargain by which Bethlehem enjoys the business freedom of the State of New York, have been authoritatively determined by the Court of Appeals, speaking through Judge Cardozo: "The stipulation is, therefore, a true contract. The person designated is a true agent. The consent that he shall represent the corporation is a real consent. He is made the person `upon whom process against the corporation may be served'. . . . The contract deals with jurisdiction of the person. It does not enlarge or diminish jurisdiction of the subject-matter. It means that whenever jurisdiction of the subject-matter is present, service on the agent shall give jurisdiction of the person."Bagdonv.Philadelphia ReadingC. I. Co.,217 N.Y. 432,436-7. A statute calling for such a designation is constitutional, and the designation of the agent "a voluntary act."Pennsylvania Fire Ins. Co. v.Gold IssueMining Co.,243 U.S. 93.

In finding an actual consent by Bethlehem to be sued in the courts of New York, federal as well as state, we are not subjecting federal procedure to the requirements of New York law. We are recognizing that "state legislation and consent of parties may bring about a state of facts which will authorize the courts of the United States to take cognizance of a case."Ex parteSchollenberger, supra, at 377. The judgment below isReversed.
MR. JUSTICE ROBERTS, dissenting.
The Circuit Court of Appeals, in a careful and discriminating opinion,1has held that to deny the respondent's motion to dismiss it from the suit would be to disregardPage 176the long settled construction of § 51 of the Judicial Code and the equally well settled application of that section. I think its judgment should be affirmed.

Whatever may be said in support of the original adoption of a different rule, it has been the law for a century that, as respects the jurisdiction of the federal courts over a corporation in diversity of citizenship cases, the corporation is a citizen and resident of the state of incorporation and of no other state. I do not understand the court's opinion to repudiate the rule.

The statute which is now § 51 of the Judicial Code took its present form in 1888. In 1892 the court held, inShawv.Quincy Mining Co.,145 U.S. 444,453, that, under the statute, "a corporation, incorporated in one State only, cannot be compelled to answer, in a Circuit Court of the United States held in another State in which it has a usual place of business, to a civil suit, at law or in equity, brought by a citizen of a different State." This construction has been followed in this court without deviation and with practical unanimity by the lower federal courts.2

At the next term, inSouthern Pacific Co. v.Denton,146 U.S. 202,205,207, the ruling was reaffirmed in a case where the defendant had registered as a foreign corporation under a state law and, as a condition of registration, had agreed that service of process might be made upon a designated agent.Page 177

The earlier Act of 1875 provided that no civil suit could be brought against a defendant in a United States court "in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process . . ."Ex parte Schollenberger,96 U.S. 369, applied that earlier statute. The court held that a foreign corporation which had registered and consented to the service of process upon a designated agent had thereby agreed "to be found" within the state and might therefore be impleaded in a federal court sitting in the state although it was not a citizen or a resident of the state. The case was cited in the opinions in both theShawand theSouthern Pacificcases. In the latter the court said, referring to the foreign corporation's agreement as to service: (pp. 207-8) "It might likewise have subjected the corporation to the jurisdiction of a Circuit Court of the United States held within the State — so long as the Judiciary Acts of the United States allowed it to be sued in the district in which it was found. . . . But such an agreement could not, since Congress (as held inShawv.Quincy Mining Co. above cited) has made citizenship of the State, with residence in the district, the sole test of jurisdiction in this class of cases, estop the corporation to set up non-compliance with that test, when sued in a Circuit Court of the United States."In re Keasbey Mattison Co.,160 U.S. 221, the court held (p. 228): "Under the provision of that act [the earlier act of 1875], which allowed a defendant to be sued in the district of which he was an inhabitant, or in that in which he was found, a corporation could doubtless have been sued either in the district in which it was incorporated, or in any district in which it carried on business and had a general agent." For this statement the court citedEx parte Schollenberger, Shawv.QuincyPage 178Mining Co., andSouthern Pacific Co. v.Denton. The opinions in the last two, and that in theKeasbeycase, were written for the court by Mr. Justice Gray, who summed up their effect by saying: "And it is established by the decisions of this court that, within the meaning of this act, a corporation cannot be considered a citizen, an inhabitant or a resident of a State in which it has not been incorporated; and, consequently, that a corporation incorporated in a State of the Union cannot be compelled to answer to a civil suit, at law or in equity, in a Circuit Court of the United States held in another State, even if the corporation has a usual place of business in that State."

This interpretation of § 51 has since remained unchanged. Congress must have known of and acquiesced in the courts' construction of the section, particularly as there have been efforts to amend it, and no alteration has been adopted.

Upon principle, and under the authorities, the mere fact that service of process valid under state law can be had on an officer or agent of a foreign corporation doing business within the state is irrelevant; for although the corporation may be served in conformity to local law, it cannot be compelled to try its case in a federal court sitting in the state. I do not understand the opinion of the court to hold to the contrary.

But it is said that registration and designation of an agent upon whom service may be made under compulsion of state law amounts to a waiver of the requirements of § 51 as to venue, or to a consent to be sued in a federal court sitting within the state.

As has been shown by quotation from the opinion, this contention was made inSouthern Pacific Co. v.Denton, supra, and was overruled. The holding was one of the alternative grounds of decision. TheSouthern PacificPage 179case settled the application of § 51, in the circumstances here disclosed, and the decision has never been qualified or overruled. The lower federal courts have understood and applied that decision with practical uniformity to enable the foreign corporation to contest the venue of suits against it.3

I see no reason at this late day to attribute a new effect to the statute when Congress has not seen fit to express a view contrary to that embodied in this court's construction of the law; though this might at any time be done. The principle ofstare decisisseems to me to make against such a change.

The court below has analyzed the applicable New York statute and has satisfactorily demonstrated that it deals with service of process on foreign corporations in the courts of New York. The state could not, by its laws, affect the jurisdiction of federal courts or the venue of suits therein, — a matter solely within the control of Congress.

The CHIEF JUSTICE and MR. JUSTICE McREYNOLDS join in this opinion.Page 180
  1. Page 167 Section 112 reads as follows: "Except as provided in sections 113 to 117 of this title, no person shall be arrested in one district for trial in another in any civil action before a district court; and, except as provided in sections 113 to 118 of this title, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but 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." ↩
  2. Page 169 See Henderson, "The Position of Foreign Corporations in American Constitutional Law,"passim, and especially the illuminating analysis, pp. 163-194. ↩
  3. Page 169 See Gray, "The Nature and Sources of the Law," 184, and Henderson,op. cit. supra, note 2, pp. 50-76. ↩
  4. Page 169 SeeSt. Clairv.Cox,106 U.S. 350,355. ↩
  5. Page 169 "We are aware that the practice in the circuit courts generally has been to decline jurisdiction in this class of suits."96 U.S. 369,378. ↩
  6. Page 170Dayv.Newark India-Rubber Mfg. Co., 1 Blatch. 628; Fed. Cas. No. 3,685;Pomeroyv.New York, N.H. H.R. Co., 4 Blatch. 120; Fed. Cas. No. 11,261. Both these cases were decided by Mr. Justice Nelson, on circuit. ↩
  7. Page 171 "While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the legislature intended to provide for."96 U.S. 369,377. SeeMadisonville Traction Co. v.Mining Co.,196 U.S. 239,255-56. Cf.Louisville N.R. Co. v.Chatters,279 U.S. 320,329. ↩
  8. Page 171 A cognate misconception as to the purpose of the Act of 1887-88 in contracting the jurisdiction of the circuit courts underlay the decision inEx parte Wisner,203 U.S. 449, overruled inLeev.Chesapeake Ohio Ry. Co.,260 U.S. 653,659. ↩
  9. Page 172 The Culberson Bill, which passed the House in 1887, was H.R. 2441, 49th Cong., 1st Sess. It provided in its original form that the lower federal courts should not take "cognizance of any suit" between "a corporation created or organized by or under the laws of any State and a citizen of any State in which such corporation at the time the cause of action accrued may have been carrying on any business authorized by the law creating it. . . ." There were likewise provisions forbidding removal of such suits to the lower federal courts. See 18 Cong. Rec. 613; H.Rep. No. 1078, 49th Cong., 1st Sess. ↩
  10. Page 172 10 Cong. Rec. 1304-1305; 14 Cong. Rec. 1270; 15 Cong. Rec. 4909. ↩
  11. Page 173Riddlev.New York, L.E. W.R. Co., 39 F. 290 (C.C., W.D. Pa., 1889);Consolidated Store-Service Co. v.Lamson Consol.Store-Service Co., 41 F. 833 (C.C. Mass., 1890) approvingly cited inHaight Freese Co. v.Weiss,156 F. 328(C. C.A. 1st, 1907). ↩
  12. Page 173Texas Land Mortgage Co. v.Worsham,76 Tex. 556. ↩
  13. Page 173146 U.S. at 207. ↩
  14. Page 173146 U.S. at 207. ↩
  15. Page 173146 U.S. at 207. TheDentoncase was based onShawv.QuincyMining Co.,145 U.S. 444, in which there was no consent derivable from the designation of an agent for service. Both opinions were written by Mr. Justice Gray, who later accurately delimited the scope of the holdings in both theShawand theDentoncases.In re Keasbey Mattison Co.,160 U.S. 221,229. The decisive difference between Page 174 the present case andIn re Keasbey Mattison Co., is that in the latter case the designation under state law which is the basis of consent had in fact not been made. But the requirement of "residence" in the Act of 1887 is as much satisfied by a consent to be sued as was the requirement "to be found" in the 1875 Act satisfied by such a consent. ↩
  16. Page 174Plattv.Massachusetts Real Estate Co., 103 F. 705 (C.C. Mass., 1900);Hagstozv.Mutual Life Ins. Co., 179 F. 569 (C.C.E.D. Pa., 1910);Beech-Nut Packing Co. v.P. LorillardCo., 287 F. 271 (S.D.N.Y., 1921);Jonesv.Consol. WagonCo.,31 F.2d 383,384(D. Del., 1929);Kerfoot Co. v.United Drug Co.,38 F.2d 671(D. Del., 1930);Standard StokerCo. v.Lower,46 F.2d 678(D. Md., 1931);McLeanv.Mississippi,96 F.2d 741(C. C.A. 5th, 1938);Grayv.Reliance Ins. Co.,24 F. Supp. 144(W.D. La., 1938);HamiltonWatch Co. v.George W. Borg Co.,27 F. Supp. 215(N.D. Ill., 1939);Toulminv.James Mfg. Co.,27 F. Supp. 512(W.D.N.Y., 1939).Cf. Heine Chimney Co. v.Rust Engineering Co.,12 F.2d 596(C. C.A. 2d 1926). ↩
  17. Page 174Shainwaldv.Davids, 69 F. 704 (N.D. Cal., 1895);Dodge Mfg.Co. v.Patten,23 F.2d 852(D. Ind., 1928), aff'd60 F.2d 676(C. C.A. 7th, 1932);Oklahoma Packing Co. v.Oklahoma GasElec. Co.,100 F.2d 770(C. C.A. 10th, 1938). ↩
  18. Page 174 Originally enacted as c. 687, Laws of 1892, pp. 1805-1806. ↩
  19. Page 175103 F.2d 765. ↩
  20. Page 176In re Keasbey Mattison Co.,160 U.S. 221;Macon Grocery Co. v.Atlantic Coast Line R. Co.,215 U.S. 501;Ladewv.Tennessee Copper Co.,218 U.S. 357;Malev.Atchison, T.S.F. Ry. Co.,240 U.S. 97;General Investment Co. v.LakeShore Ry. Co.,260 U.S. 261,271;Seaboard Rice Milling Co. v.Chicago, R.I. P. Ry. Co.,270 U.S. 363;Luckettv.Delpark, Inc.,270 U.S. 496;Burnrite Coal Co. v.Riggs,274 U.S. 208,211. The decisions in the federal courts are cited and discussed by the Circuit Court of Appeals, 103 F.2d 767. ↩
  21. Page 179 Some of the cases are cited by the Circuit Court of Appeals in its opinion. 103 F.2d 769. ↩