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Opinion of the Court.

No appearance for defendant in error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The record shows that the only matter tried and decided in the Circuit Court was a demurrer to the plea to the jurisdiction; and the petition, upon which the writ of error was allowed, asked only for the review of the judgment that the court had no jurisdiction of the action. The question of jurisdiction alone is thus sufficiently certified to this court, as required by the act of March 3, 1891, c. 517, § 5. 26 Stat. 828; In re Lehigh Co., 156 U. S. 322; Shields v. Coleman, 157 U. S. 168.

The act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 866, confers upon the Circuit Courts of the United States original jurisdiction of all civil actions, at common law or in equity, between citizens of different States, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2000; and 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." 24 Stat. 552; 25 Stat. 433.

The Circuit Courts of the United States are thus vested with general jurisdiction of civil actions, involving the requisite pecuniary value, between citizens of different States. Diversity of citizenship is a condition of jurisdiction, and, when that does not appear upon the record, the court, of its own motion, will order the action to be dismissed. But the provision as to the particular district in which the action shall be brought does not touch the general jurisdiction of the court. over such a cause between such parties; but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon, or may waive, at his election; and the defendant's right to object that an action, within the general jurisdiction of the court, is brought in the wrong district, is waived

Opinion of the Court.

by entering a general appearance, without taking the objection. Gracie v. Palmer, 8 Wheat. 699; Toland v. Sprague, 12 Pet. 300, 330; Ex parte Schollenberger, 96 U. S. 369, 378; St. Louis & San Francisco Railway v. McBride, 141 U. S. 127; Southern Pacific Co. v. Denton, 146 U. S. 202, 206; Texas & Pacific Railway v. Saunders, 151 U. S. 105; Central Trust Co. v. McGeorge, 151 U. S. 129; Southern Express Co. v. Todd, 12 U. S. App. 351.

In Smith v. Lyon, 133 U. S. 315, this court held that the provision of the act of 1888, as to the district in which a suit between citizens of different States should be brought, required such a suit, in which there was more than one plaintiff or more than one defendant, to be brought in the district in which all the plaintiffs, or all the defendants, were inhabitants.

When there are several defendants, some of whom are, and some of whom are not, inhabitants of the district in which the suit is brought, the question whether those defendants who are inhabitants of the district may take the objection, if the non-resident defendants have not appeared in the suit, has never been decided by this court. Strong reasons might be given for holding that, especially where, as in this case, an action is brought against the principals and sureties on a bond, and one of the principals is a non-resident and does not appear, the defendants who do come in may object, at the proper stage of the proceedings, to being compelled to answer the suit.

But in the present case it is unnecessary to decide that question, because one of the principals and both sureties, being all the defendants who pleaded to the jurisdiction, had entered a general appearance long before they took the objection that the sureties were citizens of another district. Defendants who have appeared generally in the action cannot even object that they were themselves inhabitants of another district, and, of course, cannot object that others of the defendants were such. Judgment reversed, and case remanded with directions to sustain the demurrer to the plea, and for further proceed ings not inconsistent with this opinion.

Statement of the Case.

In re KEASBEY AND MATTISON COMPANY,
Petitioner.

ORIGINAL.

No. 6. Original. Submitted October 14, 1895. - Decided December 16, 1895.

By virtue of the act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 866, a corporation incorporated by a State of the Union cannot be compelled to answer to a suit for infringement of a trade-mark under the act of March 3, 1881, c. 138, in a district in which it is not incorporated and of which the plaintiff is not an inhabitant, although it does business and has a general agent in that district.

THIS was a petition for a writ of mandamus to the judges of the Circuit Court of the United States for the Southern District of New York, to command them to take jurisdiction and proceed against the E. L. Patch Company upon a bill in equity, filed in that court on January 26, 1895, by the petitioner, described in the bill as a corporation organized and existing under the laws of the State of Pennsylvania, against the E. L. Patch Company, alleged in the bill to be a corporation organized and existing under the laws of the State of Massachusetts, and having its principal office and place of business in the city and State of New York, and against Henry E. C. Kuehne and Edward H. Lubbers, alleged to be citizens of the United States and of the State of New York, and managing or general agents of the E. L. Patch Company in that State, for infringement of a trade-mark, owned by the petitioner, registered in the Patent Office under the laws of the United States, and used in commerce between the United States and several foreign nations named in the bill; and alleging that "this is a suit of a civil nature in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the laws of the United States, and also in which there is a controversy between citizens of different States, within the intent and meaning of the statute in such case made and provided."

Argument for Petitioner.

Upon the filing of the bill in equity, a subpoena addressed to all the defendants was issued, and was served in the city of New York upon the E. L. Patch Company by exhibiting the original and delivering a copy to Kuehne, one of its managing agents in the district, and was also served upon Kuehne and Lubbers individually.

Upon the return of the subpœna, the E. L. Patch Company, by its solicitor appearing specially for this purpose, moved to set aside the alleged service of the subpoena upon the company; and the Circuit Court, upon a hearing, ordered that the motion be granted, and that service set aside as null and void, and the company relieved from appearing to plead or answer to the bill.

Mr. Edward K. Jones for petitioner.

The questions to be passed on by this court are: (1) Whether or not that part of the first section of the act of March 3, 1887, c. 373, relating to the jurisdiction of the District and Circuit Courts as amended by the act of August 13, 1888, c. 866, which provides 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," is applicable to suits brought under a prior special act of Congress authorizing the registration of certain trade-marks and providing remedies in the courts of the United States for their infringement, such special act in itself not containing any such restriction upon the exercise of jurisdiction; and (2) Whether or not, if the provision of the act of 1887, as amended, and above quoted, does apply to such suits, the defendant corporation has waived its privilege of being sued in the district of its residence by doing business and having agents for the transaction thereof in the State and district where the suit is brought, the laws of that State providing that such foreign or non-resident corporations shall be subject to suit therein as a condition to their right to do business there?

The case in no aspect can be considered to fall within the

Argument for Petitioner.

decisions of this court construing the application of the further provision of the first section of the judiciary act of 1887, as amended, declaring 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," for the plain reason that the jurisdiction invoked in this case does not depend only on that fact.

The contention in behalf of the petitioner is,

(1) That there is really no question of jurisdiction at all in this case, as the learned judge of the Circuit Court supposed, the real question being whether or not the exercise of jurisdiction has been prohibited or restricted so as to exclude the defendant from its operation, upon its pleading the privilege of being sued only in the district of its residence or inhabitancy.

(2) That the provisions of the first section of the present judiciary act above quoted are inapplicable to this case, because the suit being founded on a special act of Congress, to wit, the act authorizing the registration and suits for the infringement of trade-marks; and that act contains no such prohibition or restriction.

(3) Even if the case is governed by the judiciary act of 1887, as amended, and conceding that the limitations of the exercise of jurisdiction above quoted would otherwise operate, the defendant has waived its privilege of being sued only in the district of its residence by doing business in the State and district where it is sued and committing there the injury for which the suit is brought.

The Circuit Court clearly has jurisdiction of the defendant corporation.

This proposition is evident not only from the express terms of the act relating to trade-marks, but also from the act of 1887, as amended.

There can, therefore, be no question of jurisdiction. The only question is, as before stated, whether or not the exercise of jurisdiction in a case like the present is, by some other provision of law, excluded or forbidden when pleaded by the defendant. In other words, has this defendant the privilege

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