Interior Construction & Improvement Company v. Gibney

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 & Improvement Company against John C. Gibney and Harvey Bartley, copartners under the name of J. C. Gibney & Co., and James B. McElwaine and James B. Wheeler, upon a bond, by which 'J. C. Gibney & Co., as principals, and J. B. McElwaine and J. B. Wheeler, as sureties, are holden and firmly bound,' 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 (1) in overruling the plaintiff's demurrer to the plea in abatement; (2) in sustaining the plea in abatement, and holding that the court had no jurisdiction of the cause; (3) 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.

John C. Donnelly, for plaintiff in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.