Opinion
No. 676.
February 11, 1929.
Jones, Pomeroy Jones, of Pocatello, Idaho, and Wilson S. Wiley and Caleb Jones, both of Klamath Falls, Or., for plaintiff.
Jesse R.S. Budge, of Salt Lake City, Utah, and Clency St. Clair, of Idaho Falls, Idaho, for defendant.
At Law. Action by Lena M. Jones against the Consolidated Wagon Machine Company. Defendant filed a demurrer to plaintiff's amended complaint. Demurrer sustained, and suit dismissed.
Defendant urges again by its demurrer to the amended complaint that this court is without jurisdiction in the first instance, where jurisdiction is founded upon diversity of citizenship, as section 51 of the federal Judicial Code ( 28 USCA § 112) provides that, where jurisdiction is claimed on diversity of citizenship, the suit shall be brought only in the district of the residence of either plaintiff or defendant.
The demurrer to the original complaint was sustained on the ground of lack of jurisdiction, and an analysis of the amended complaint shows that it is substantially the same as the original. It clearly appears that the plaintiff is a resident and citizen of the state of Oregon, and that the defendant is a corporation organized and existing under and by virtue of the laws of the state of Utah. The residence of the defendant corporation is presumed, for the purposes of jurisdiction of the federal court, to be that of the state in which it was created, and that state is where it has its domicile or legal home, although it may be engaged in business in Idaho, and has complied with the laws of the latter state as to foreign corporations transacting business therein. So, where it is sought, as here, to found jurisdiction on diversity of citizenship, the last clause of paragraph (a) of section 51 of the federal Judicial Code should be construed to mean that the word "only" requires that the suit shall be brought in no other district than the district of the residence of either the plaintiff or defendant. Therefore the jurisdiction of this court cannot be predicated on diversity of citizenship, where neither party is a resident of this district. Seaboard Rice Milling Co. v. Chicago, Rock Island Pacific Ry. Co., 270 U.S. 363, 46 S. Ct. 247, 70 L. Ed. 633; Lee v. Chesapeake Ohio Ry. Co., 260 U.S. 653, 43 S. Ct. 230, 67 L. Ed. 443; Southern Pacific Co. v. Burch (9 C.C.A.) 152 F. 168; Yellow Aster Min. Milling Co. v. Crane (9 C.C.A.) 150 F. 580. Nor does the mere fact of defendant having complied with the foreign corporation laws of Idaho prevent it from objecting to the jurisdiction of the court. Wolff Co. v. Choctaw O. G.R. Co. (C.C.) 133 F. 601; Baldwin v. Pacific Power Light Co. (D.C.) 199 F. 291; Southern Pac. Co. v. Denton, 146 U.S. 202, 13 S. Ct. 44, 36 L. Ed. 942; In re Keasbey Mattison Co., 160 U.S. 221, 16 S. Ct. 273, 42 L. Ed. 402.
According to repeated decisions of the federal courts, a corporation cannot be considered a citizen and resident of a state in which it has not been incorporated, although it does business in that district, and has, in compliance with the laws of that state, consented to be sued in its courts and appointed an agent upon whom legal process against it may be served.
The defendant by its demurrer having seasonably asserted its privilege conferred by section 51 in objecting to the jurisdiction of the court over it, the demurrer must be sustained, and the suit dismissed for want of jurisdiction.