ELDORADO COAL & MINING CO. v. MARIOTTI, 215 F. 51

KOHLSAAT, Circuit Judge (after stating the facts as above). Under

section 2 of

article 3 of the Constitution, and as enacted by Congress in clause 1 of

section 24 of the Judicial Code of 1911, the District Court had general jurisdiction of a suit brought by an alien against a citizen of the United States. By

section 51 of the Judicial Code aforesaid, it is enacted that: “Except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person By any original process or proceeding in any other district than that whereof he is an inhabitant; but 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.” Where, as here, the court has jurisdiction of the subject-matter, the right of the defendant to object upon the ground that the suit was brought in the wrong district, unlike the objection of a general lack of jurisdiction of the subject-matter, is one of privilege which may be waived by the defendant, and is waived if not specifically asserted and maintained.

In Interior Construction Co. v. Gibney, 160 U. S. 217, 16 Sup., Ct. 272, 40 L.

Ed. 401, the court says: “But tlie 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 by entering a general appearance without taking the objection,” In support of this proposition the court cites In re Keasbey & Mattison Co., 160 U.

S. 229, 16 Sup. Ct. 273, 40 L. Ed. 402, and many other cases. The rule has been followed by the several Circuit Courts, in Re Woodbury (D. C.) 98 Fed. 839, Scott v. Hoover, 99 Fed. 251, Platt v. Mass. Real Estate Co. (C. C.) 103 Fed. 706, and in Occidental Consolidated Mining Co. v. Comstock Tunnel Co. (C. C.) 120 Fed. 519. Whether under

section 51 suit may be brought in the district of the residence of the plaintiff, only when the plaintiff is a citizen of one of the United- States, and whether, if' the foregoing be the correct

interpretation of the statute, the treaty with Italy overrides the statute and gives an Italian subject the right to sue in the district of his residence in the United States, are questions we do not consider, because, the right to be sued in one’s own district being a personal privilege that may be waived, we find from the record that the objection was waived. > In the printed record, as above set out, there appears what purports to be a motion made by plaintiff in error in the District Court, to dismiss the suit for want of jurisdiction for matters that appear upon the face of the declaration.

Neither this motion’nor any ruling thereon was preserved in the bill of exceptions, and as a motion it is, therefore, not before this court. Only the process, pleadings, orders, judgment of the court and such matters as are properly preserved in the bill of exceptions, can be deemed as constituting the record, unless made so by agreement of parties or order of court. Sargeant v. State Bank of Indiana, 12 How. 385, 13 L. Ed. 1028; Fisher v. Cockerell, 5 Pet. 248-254, 8 L. Ed. 114; United States v. Taylor, 147 U. S. 699, 13 Sup. Ct. 479, 37 L. Ed. 335; Freeman on Judgments, § 79; Loeb v.

Columbia Township Trustees, 179 U. S. 472-482, 21 Sup. Ct. 174, 45 L. Ed. 280. Motions based on matters dehors the record are expressly held to be not a part of the record unless preserved in a bill of exceptions or otherwise saved as above noted. Sargeant v. State Bank of Indiana, and other cases cited supra. It follows, therefore, that this motion, if it were one requiring preservation by bill of exceptions, was not preserved.

It will be seen that the order of May 5, 1913, fails to show that the motion to dismiss therein set out was based, upon the- claim that plaintiff in error asserted the privilege of being sued in its own district. Nor is there any presumption that such was the case.

If, however, it be urged that since the first motion was based on facts appearing in the declaration it should be treated as a special demurrer, the record fails to show that the. court ever disposed of it, in which case all right of plaintiff in error now to insist on the further consideration of its objection to the jurisdiction of the District Court for the reason set out was waived by its appearance generally for the purpose of demurring to the merits of the cause. Thus, from whatever point of view the case is considered, the objection must be held to have been waived under the authorities above cited.

Plaintiff in error, as above stated, filed its demurrer to the declaration and to each and every count thereof. If any count of the declaration be found to be good, then the judgment will not be disturbed.

Section 71, c. 110, Statutes of Illinois (Revision of 1909); North v. Kizer et al., 72 Ill. 173-176; Consolidated Coal Co., etc., v. Scheiber, 167 Ill. 539-541, 47 N. E: 1052. Whether or not the demurrer should have been sustained to counts 1 to 4 inclusive, we do not here determine.

While count 5 sets up several duties cast upon the plaintiff in error by the statute, only one breach is alleged, namely, that plaintiff in error willfully failed to see that the roadway known as the third west north entry, which, as plaintiff in error knew, was so dry that the air therein was clogged with dust, was thoroughly sprinkled, sprayed, or cleaned, as hy the statute required, whereby the explosion and consequent injury to defendant in error were caused. The count is single, and therefore not open to the charge of duplicity.

The contention of counsel for plaintiff in error that the count fails to connect the dusty condition of the road with the explosion is without merit. The declaration alleges that: “By reason of the heavy dust in said roadway and as a result of the failure to sprinkle the said roadway an explosion occurred.” It would be a difficult matter, without setting forth evidentiary facts, to state the ultimate facts in any other way. The count must therefore be held to be good.

Plaintiff in error also insists, as a ground of demurrer, that the said mining act had, before the time of the accident, been repealed by the passage of the so-called Workmen’s Compensation Act by the Illinois Legislature. Clause (

c) of

section 29 of the mining act provides : “That if and whenever there shall be in force in this state, a statute or statutes providing for compensation to workmen for all injuries received in course of their employment, the provisions thereof shall apply in lieu of the right of action for damages provided in this act.”

Section 1 of the Compensation Act makes it optional with the employer whether he will accept the provisions of that act. The same option is accorded to the employé. A statute whose operation is dependent on the will of the persons to be affected thereby is not such a statute (a law of universal obligation) as clearly was contemplated by clause (

c) of

section 29 of the Mining Act. If the Compensation Act was intended to repeal the Mining Act, why make any provisions for the trial of a cause in which'the plaintiff refused to accept the terms of the Compensation Act? Where and under what law would the employe seek relief were he to refuse the provisions of the act? Why give each party an election of remedies if there be no other remedy than that of the Compensation Act? The point is devoid of merit and may not, with reason, be deduced from the statute. The demurrer was rightly overruled by the District Court, and the judgment of that court is affirmed.