Opinion of the Court.

of a receiver, and thus was brought within the ruling of this court, so frequently made, that the exemption from being sued out of the district of its domicil is a personal privilege which may be waived, and which is waived by pleading to the merits. In Ex parte Schollenberger, 96 U. S. 369, 378, which arose under the Judiciary Act of 1875, it was said: "The act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented."

So, under the act of February 18, 1875, 18 Stat. 316, 320, c. 80, which exempted national banks from suits in state courts in counties other than the county or city in which the bank was located, it was held, in Bank v. Morgan, 132 U. S. 141, that such exemption was a personal privilege which could be waived by appearing to such a suit brought in another county, and making defence without claiming the immunity granted by Congress.

St. Louis & San Francisco Railway v. McBride, 141 U. S. 127, 131, was a case wherein it was contended in this court that the court below, the Circuit Court of the United States for the Western District of Arkansas, had no jurisdiction, because the suit was brought against a railway company whose domicil was in another State, and therefore within the operation of the Judiciary Act of 1887, as amended in 1888, providing that no suit shall be brought against any person in any other district than that whereof he is an inhabitant; but it was held, citing Ex parte Schollenberger, 96 U. S. 378, and Bank v. Morgan, 132 U. S. 141, that "without multiplying authorities on this question, it is obvious that the party who in the first instance appears and pleads to the merits waives any right to challenge thereafter the jurisdiction of the court, on the ground that the suit had been brought in the wrong district."

The court below based its ruling on Shaw v. Quincy Mining Co., 145 U. S. 444, 453, and on Southern Pacific Co. v.

Opinion of the Court.

Denton, 146 U. S. 202, and it is true that the right of a corporation to avail itself of the exempting clause of the act of 1887 was there maintained, but, in both cases, the defendants specially appeared and set up such right, in the one case by a motion to set aside the service of the process, and in the other by a special demurrer.

The opinion in Shaw v. Quincy Mining Co., contains a full history of the legislation on this subject, and refers to the several questions that have arisen and been determined by this court under such legislation. The court, speaking through Mr. Justice Gray, said: "The Quincy Mining Company, a corporation of Michigan, having appeared specially for the purpose of taking the objection that it could not be sued in the Southern District of New York by a citizen of another State, there can be no question of waiver, such as has been recognized where a defendant has appeared generally in a suit between citizens of different States, brought in a wrong district. All that is now decided is that, under the existing act of Congress, a corporation, incorporated in one State only, cannot be compelled to answer, in a Circuit Court of the United States held in another State in which it has a usual place of business, to a civil suit, at law or in equity, brought by a citizen of a different State."

In Southern Pacific Co. v. Denton, where the subject was again elaborately discussed, it was said: "It may be assumed that the exemption from being sued in any other district might be waived by the corporation, by appearing generally, or by answering to the merits of the action, without first objecting to the jurisdiction," and the case of St. Louis Railway v. McBride, 141 U. S. 127, was cited to that effect.

The court below suggested that the present case is distinguishable from the others in which it was held that the right of exemption might be waived, in that neither the plaintiff nor the defendant resided in the district in which the suit was brought, that is, the Mercantile Trust Company, the plaintiff, had its residence in New York, and the Virginia, Tennessee, and Carolina Company, the defendant, was a corporation of New Jersey.

Syllabus.

But a similar state of facts existed in the case of Shaw v. Quincy Mining Co., inasmuch as Shaw, the plaintiff, was a citizen of Massachusetts, and the mining company was a corporation of the State of Michigan, and the suit was brought in the Circuit Court for the Southern District of New York. Nor do we see any reason for a different conclusion, as to the subject of waiver, when the question arises where neither of the parties are residents of the district, from that reached where the defendant only is not such resident.

It is scarcely necessary to say that, as the defendant company had submitted itself to the jurisdiction of the court, such voluntary action could not be overruled at the instance of stockholders and creditors, not parties to the suit as brought, but who were permitted to become such by an intervening petition.

In view, then, of the authorities cited, and upon principle, we conclude that the court below erred in vacating the order appointing receivers and in dismissing the bill of complaint, and we reverse its decree to that effect and remand the cause with directions for further proceedings not inconsistent with this opinion.

Reversed.

VOORHEES v. JOHN T. NOYE MANUFACTURING

COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 734. Submitted December 19, 1893.- - Decided January 3, 1894.

A final decree was entered January 7, 1891, and appeal allowed the same day. A motion for rehearing was made January 10, 1891, which was argued February 3, 1892, and denied February 17, 1892. An appeal bond was given April 15, 1892, conditioned for the prosecution of the appeal taken January 7, 1891, and the record was filed here April 19, 1892. Held, that, under the provisions of the act of March 3, 1891, 26 Stat. 826 c. 517, the Circuit Court of Appeals had jurisdiction of an appeal, and, upon the denial of the petition for a rehearing, a new appeal should have been taken to that court for the Eighth Circuit.

Opinion of the Court.

THE case is stated in the opinion.

Mr. C. S. Montgomery for appellant.

Mr. Alfred Hazlett for appellee.

THE CHIEF JUSTICE: The decree in this cause was entered on January 7, 1891, at the November term, 1890, of the Circuit Court of the United States for the District of Nebraska, and at its foot the court minuted: "Lucas A. Voorhees prays an appeal, which is allowed;" and also, "L. A. Voorhees has leave to file motion for rehearing Saturday." On the tenth of January, which was the Saturday following, the application of L. A. Voorhees for rehearing was filed.

It appears of record that on January 9, 1892, at the November, 1891, term of the court, "this cause coming on to be heard this day on the motion for rehearing filed herein, was argued and submitted to the court by solicitors for the respective parties; whereupon the court takes the same under consideration." On February 3, 1892, at the January term, 1892, the record shows that the motion for rehearing of the cause "on its merits was reargued and submitted to the court by solicitors for the respective parties," and taken under advisement.

February 17, 1892, at the same January term, the motion for rehearing was denied, the court holding that "it is now too late to sustain said motion or to interfere with the decree." March 23, 1892, the refusal of certain defendants to join in an appeal was filed, which refusal was dated January 17, 1891. April 15, 1892, an appeal bond was given by Lucas A. Voorhees, conditioned for the prosecution of the appeal allowed January 7, 1891, approved by the court and filed April 18, 1892. The record was filed in this court, April 19, 1892, certified by the clerk of the Circuit Court, April 5, 1892. The bond is certified to by the clerk of the Circuit Court under date, April 21, 1892.

The jurisdiction of the court below depended solely upon the diverse citizenship of the parties, and by the act of March 3, 1891, 26 Stat. 826, c. 517, the jurisdiction of this court in

Syllabus.

such cases was taken away, although preserved by the joint resolution of March 3, 1891, 26 Stat. 1115, as to pending cases and cases wherein the appeal should be taken before July 1, 1891. The appeal was allowed January 7, 1891, but the decree did not take final effect as of that date for the purposes of an appeal, nor until February 17, 1892, because the application for rehearing was entertained by the court, filed within the time granted for that purpose, and not disposed of until then. Aspen Mining &c. Co. v. Billings, 150 U. S. 31.

The appeal bond was not given until April 15, 1892, but the record was filed in this court April 19, 1892, which was one of the days of the October term, 1891, of this court. Notwithstanding this, however, and without considering the question as to whether this appeal was properly prosecuted, in respect of parties, within Hardee v. Wilson, 146 U. S. 179, we are of opinion that as the Circuit Court had jurisdiction, and this court had not, long after July 1, 1891, the taking of a new appeal became necessary upon the denial of the rehearing, and this could only be to the Circuit Court of Appeals for the Eighth Circuit. Cincinnati Safe & Lock Co. v. Grand Rapids Deposit Co., 146 U. S. 54.

Appeal dismissed.

BALTIMORE TRACTION COMPANY v. BALTIMORE BELT RAILROAD COMPANY.

ERROR TO THE BALTIMORE CITY COURT.

No. 994. Submitted December 11, 1893. - Decided January 8, 1894.

A public act of the State of Maryland providing for the condemnation of land for the use of a railroad company was held by the Court of Appeals of that State to require notice to the owner of the land proposed to be condemned, when properly construed. Held, that this court had no jurisdiction over a writ of error to a court of that State, when the only error alleged was the want of such notice, which, it was charged, invalidated the proceedings as repugnant to the Constitution of the United States.