Roberts v. R. Dunsmuir (1888) · DecisionDepot

Roberts v. R. Dunsmuir

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 1, 1888 No. No. 12162Published

Before: Temple

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Holding. The court held that the trial court erred in dismissing a transitory action for lack of jurisdiction simply because the parties were foreign subjects, as such actions may be brought wherever the defendant is found.

Issues

Whether a state court has jurisdiction over a transitory action between foreign subjects when the defendant is served within the state.
Whether filing a petition for removal to federal court and seeking extensions of time constitutes a voluntary appearance conferring personal jurisdiction.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The action is transitory and the defendant may be sued wherever found.”

“On motion of the defendant the court below dismissed the action on the ground that the courts of this state have no jurisdiction. In this it is plain the court erred.”

Synopsis

Jurisdiction—Personal Tort Inflicted in Foreign Country—Aliens, —The courts of this state have jurisdiction of an action brought by one resident alien against another resident alien who is personally served with summons, to recover damages for personal injuries inflicted on the plaintiff in a foreign country.

Temple, J. —The plaintiff is a subject of Great Britain, and brings this suit against these defendants, who are also subjects of Great Britain, to recover damages for injuries received while employed by them in their coal mines in British Columbia. At the time of bringing the suit the plaintiff and one of the defendants were actually residing in this state, and the plaintiff had declared his intention to become a citizen of the United [204]States. But one of the defendants was served with summons. He answered, denying the alleged partnership, or that he was ever owner of the mine, which he averred was wholly owned by the defendant, who resided in British Columbia.

On motion of the defendant the court below dismissed the action on the ground that the courts of this state have no jurisdiction. In this it is plain the court erred. (Johnson v. Dalton, 1 Cow. 543; 13 Am. Dec. 564; Gardner v. Thomas, 14 Johns. 134; 7 Am. Dec. 445; Smith v. Bull, 17 Wend. 323.)

The action is transitory and the defendant may be sued wherever found. Otherwise a person might in some cases escape such liability by simply going into another state.

The defendants, E. Dunsmuir and James Dunsmuir, were not personally served, and are not residents of this state. The court had no jurisdiction as to them, if they have not voluntarily appeared in the action. It is claimed they did that by filing a petition asking to have the cause removed to the circuit court of the United States, and by procuring an extension of time to answer after such appearance. The plaintiff at the trial asked to have their default entered, and thereupon read the petition for the removal of the cause, and offered to prove that after such petition was filed the defendants E. and James Dunsmuir applied to the circuit court for and obtained several extensions of the time in which to plead. The court rejected this last evidence of its own motion, saying that it was immaterial, as the court had no jurisdiction of the action. In other, words, the court refused to act at all upon the motion for a default, believing it had no jurisdiction of the case.

The judgment is reversed, and cause remanded for a new trial and for further proceedings.

McKinstry, J., and Searls, O. J., concurred.

Roberts v. R. Dunsmuir

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