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U.S. Supreme Court

Interior Construction & Improvement Co. v. Gibney, 160 U.S. 217 (1895)

Interior Construction and Improvement Co. v. Gibney

No. 99

Argued December 6, 1895

Decided December 16, 1895

160 U.S. 217


Where the record shows that the only matter tried and decided in the circuit court was a demurrer to a 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 sufficiently certified to this Court, as required by the Act of March 3, 1891, c. 517, § 5.

Under the Act of March 3, 1887, c. 373, as corrected by the Act of August 13, 1888, c. 866, a defendant who enters a general appearance in an action between citizens of different states thereby waives the right afterwards to object that he or another defendant is not an inhabitant of the district in which the action is brought.

This was an action at law brought June 9, 1890, in the Circuit Court of the United States for the District of Indiana by the Interior Construction and Improvement Company against John C. Gibney and Harvey Bartley, co-partners under the name of J. C. Gibney and Co., and James B. McElwaine and James B. Wheeler, upon a bond, by which "J. C. Gibney and Co., as principals, and J. B. McElwaine and J. B. Wheeler, as sureties, are holden and firmly bound," chanroblesvirtualawlibrary

Page 160 U. S. 218

jointly and severally, to the plaintiff in the sum of $20,000 for the performance of a contract made by "said J. C. Gibney & Co." with the plaintiff.

The complaint alleged that the plaintiff was incorporated under the laws of the State of New Jersey, and was a citizen thereof, and that all the defendants were citizens and residents of the State of Indiana.

On June 19, 1890, the defendants Gibney, McElwaine, and Wheeler, by their attorney, entered a general appearance. But Gibney never pleaded or answered, and the defendant Bartley never appeared or made any defense.

On September 19, 1891, McElwaine and Wheeler pleaded in abatement that at the time of the bringing of this action and ever since, Gibney and Bartley were citizens of the State of Pennsylvania, and not citizens or residents of the State of Indiana, and that therefore the court had no jurisdiction of the case.

The plaintiff demurred to this plea as not containing facts sufficient to constitute a cause for the abatement of the action. The plaintiff declining to plead further, but electing to stand upon its demurrer to the plea, the court adjudged that the plaintiff take nothing by its action, and that the defendants recover costs.

The plaintiff thereupon presented a petition for the allowance of a writ of error

"for the review of the judgment heretofore rendered therein in favor of the defendants and against the plaintiff, therein holding and deciding that this Court has no jurisdiction of said action,"

and assigned as errors that the circuit court erred 1st. in overruling the plaintiff's demurrer to the plea in abatement, 2d. in sustaining the plea in abatement, and holding that the court had no jurisdiction of the cause, 3d. in entering judgment in favor of the defendants and against the plaintiff on the plea in abatement, and dismissing and quashing the proceedings. The writ of error was thereupon allowed by the judge presiding in the circuit court. chanroblesvirtualawlibrary

Page 160 U. S. 219

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