ordinarily need not be alleged in the complaint, being defensive matter in abatement.91 The allegation of payment of license need do no more than meet the terms of the statute.92 § 3049. Pleading jurisdictional facts and venue-In general. There are several aspects of the question of what facts to plead as bearing on jurisdiction and venue, and how to plead them: jurisdiction in courts of general jurisdiction, jurisdiction specially conferred or in inferior courts, venue including that venue which is jurisdictional in some states, and jurisdiction of federal courts. As to the first, it is obviously not necessary to allege that a court of general jurisdiction has jurisdiction, for that is presumed.93 But the question arises in those states which deny jurisdiction of actions by or against foreign corporations.94 In such actions if the facts and place of incorporation are fully alleged, the addition of the allegations necessary to state the cause of action in substance may reveal the foreign origin of the cause of action and the nonresidence of the parties or one of them. If all the facts thus appear to show that there is no jurisdiction, such allegations must be added as will make out a ground for jurisdiction over the cause of action because of its nature and thus overcome the prima facie want of jurisdiction.95 If the complaint is silent as to any one of these ousting facts no such allegation is required, the presumption being effective to sustain the jurisdiction.96 supra, and chapter on Foreign Corporations, infra. An attachment affidavit should allege one of the statutory grounds of jurisdiction where it shows plaintiff a nonresident and defendant a foreign corporation. Otherwise no jurisdietion attaches. Allison v. T. A. Snider Preserve Co., 20 N. Y. Misc. 367, 45 N. Y. Supp. 923. 96 It is not necessary for a resident to set up his residence when suing a foreign corporation. It is matter of defense to show that he is not, and so to oust jurisdiction. Brisbane v. Pennsylvania R. Co., 141 N. Y. App. Div. 366, 125 N. Y. Supp. 1042. Demurrer for want of jurisdiction will not reach foreign corporation where place of contract is not stated or plaintiff's residence. Carter v. Her [§ 3049 An untrue allegation that a corporation is one of a state may sustain a state judgment based thereon, although the case would have been removable on true allegations,97 but it will not prevent removal if petition is filed.98 As to courts of limited, special or inferior jurisdiction the necessary facts should be pleaded, if written pleadings are used or required, and among those facts are the residence or place of business of the party or parties.99 In courts of this character such allegations are jurisdictional as distinguished from similar allegations in courts of general jurisdiction affecting the venue or place for trial. In a very early case in which a corporation was defendant a pleaded venue was declared to be useless in a transitory action except as a matter of form.1 Generally the venue need not be stated in the body of the pleading, the venue in the margin being understood to be the place until the contrary is shown,2 and the filing in the clerk's office suffices. The want of it or error in it therefore must be assailed, if bert Booth King & Bro. Pub. Co., 26 N. Y. Misc. 652, 56 N. Y. Supp. 382. 97 Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 40 L. Ed. 1048. 98 Texas & P. R. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 1132, aff 'g 67 Fed. 71. 99 That a domestic corporation has an office in New York city must be pleaded in the municipal court. Consolidated Copalquin Mines Co. V. Broadway Realty Co., 31 N. Y. Misc. 783, 65 N. Y. Supp. 227. Allegation that defendant foreign corporation has an office in New York is also essential. McKeever v. Supreme Court Independent Order of Foresters, 122 N. Y. App. Div. 465, 106 N. Y. Supp. 1041; Epstein v. S. Weisberger Co., 52 N. Y. Misc. 572, 102 N. Y. Supp. 488. In the city court of New York the residence of plaintiff must be alleged if jurisdiction is based thereon, though the court refused to admit any difference between courts of limited and general jurisdiction. O'Reilly v. New Brunswick, A. & N. Y. Steamboat Co., 28 N. Y. Misc. 112, 59 N. Y. Supp. 261, rev'g 26 N. Y. Misc. 195, 55 N. Y. Supp. 1133. IV Priv. Corp.-76 In the New York city district court under Code Civ. Proc. § 3215, it need not be alleged in the complaint that defendant has an office in New York city. It must, however, be shown if challenged. Hilleary v. Skookum Root Hair Grower Co., 4 N. Y. Misc. 127, 23 N. Y. Supp. 1016. While allegations of residence may be necessary, if challenged, to confer jurisdiction on the county court, it may be waived by going to the merits. Meyers v. American Locomotive Co., 201 N. Y. 163, 94 N. E. 605. 94. 1 Briggs v. Nantucket Bank, 5 Mass. Venue need not be pleaded in court of general jurisdiction. Eel River R. Co. v. State, 143 Ind. 231, 42 N. E. 617; Norfolk & W. R. Co. v. Ampey, 93 Va. 108, 25 S. E. 226. In quo warranto want of a venue is cured by verdict, being transitory. Bank of Vincennes v. State, 1 Blackf. (Ind.) 267, 12 Am. Dec. 234. 2 Cocke V. Kendall (Ark. Terr.), Hempst. 236, Fed. Cas. No. 2929b; Slate v. Post, 9 Johns. (N. Y.) 81. 3 Baltimore & Y. Turnpike Co. v. Crowther, 63 Md. 558, 1 Atl. 279. at all, by special demurrer, and will not be noticed sua sponte or on motion in arrest. Inasmuch as the venue is fixed primarily by the facts disclosed in the complaint, it should allege such facts, if any, as are essential to support such venue, or at least show a case not incompatible with it.5 It may be proper, even if not necessary, to allege the residence, domicile or place of business of the party or parties, or the place of origin or nature of the cause of action, or the location of properties or subject-matter of the action, in order to sustain one of the special venues permitted in actions by or against a corporation, and the allegations as to the character of the corporation and the stating part of the complaint taken together frequently supply them without any introductory allegations. The answer may supply them, too.8 Formal allegations and fictional ones will not 4 Gilbert v. Nantucket Bank, 5 Mass. 97; Briggs v. Nantucket Bank, 5 Mass. 94. See also § 3069, infra, and see § 2984, supra, as to mode of claiming privilege of venue and change. 5 See § 2978 et seq., supra, as to those facts. An exhibit showing a policy signed in J county does not show that it was not issued as alleged in the county where venue is laid. Kentucky Mat. Security Fund Co. v. Logan's Adm'r, 90 Ky. 364, 14 S. W. 337. 6 Thus a suit for breach of duty by carrier may be brought either where the contract was made or was to be performed, or, if ex delicto, where the cause of action originates, which would be at point of delivery in case of delay. Wright v. Southern R. Co., 7 Ga. App. 542, 67 S. E. 272. But where complaint in an action against an incorporated carrier was ambiguous in this respect, and no demurrer was filed, the plaintiff could elect to treat it as whichever he chose. Central R. Co. v. Pickett, 87 Ga. 734, 13 S. E. 750. And where no allegations fix the facts which determine where the contract was made or performable or broken, it will be presumed against the pleader in fixing venue. Ham mond v. Ocean Shore Development Co., 22 Cal. App. 167, 133 Pac. 978. It should show that cause of action arose in the county to support venue. Hildebrand v. United Artisans, 46 Ore. 134, 114 Am. St. Rep. 852, 79 Pac. 347. It need not aver that defendant's railroad runs through the county. Ohio Southern R. Co. v. Morey, 47 Ohio St. 207, 7 L. R. A. 701, 24 N. E. 269. 7 An allegation that an act was done at the city of Petersburg" and that the injury was thereby sustained is sufficient if it was needed. Norfolk & W. R. Co. v. Ampey, 93 Va. 108, 25 S. E. 226. Where no venue is laid in the margin but the land where the injury was done was within the county the omission was technical and was cured by the statute (C. L. § 6051). Grand Rapids & I. R. Co. v. Southwick, 30 Mich. 444. Allegation that defendant "was indebted in a certain county is not an allegation that it became indebted there. Hammond v. Ocean Shore Development Co., 22 Cal. App. 167, 133 Pac. 978. 8 Where venue was not pleaded in the complaint a denial that the wrong occurred in the county in question [§ 3049 support a special venue. If a corporation be such that a special venue is given by statute in certain actions, nevertheless in other kinds of actions the special venue need not be alleged.10 Where, as in Georgia, the venue of some actions is jurisdictional all facts necessary to support the venue claimed must be alleged,11 but if enough to sustain it be alleged, additional facts sustaining it or affecting it need not be; 12 and a co-defendant's venue will not sustain the action unless a cause of action against him be pleaded.13 Jurisdictional averments should be pleaded as of the time of the action,14 although it must be remembered that in pleading venue some cured the omission. Evans v. Maysville & B. S. R. Co., 25 Ky. L. Rep. 1258, 77 S. W. 708. An admission on the pleadings that defendant is "doing business" in S county implies that its office is there and sustains venue though the president was served elsewhere. Collins v. Hazel Lumber Co., 54 Wash. 524, 103 Pac. 798. 9 The fiction in a complaint on implied promise that defendant "then and there promised," etc., will be disregarded as an allegation of venue. Hammond v. Ocean Shore Development Co., 22 Cal. App. 167, 133 Pac. 978. 10 Where a special venue is given on a liability as carrier but the action is not on such a liability, such particular venue need not be alleged. Atchison, T. & S. F. R. Co. v. Jordan Stock Food Co., 67 Kan. 86, 72 Pac. 533. 11 Must state the nature of the cause of action. White v. Atlanta, B. & A. R. Co., 5 Ga. App. 308, 63 S. E. 234. Must allege that there was no agent where cause of action arose. Jordan v. Georgia Southern & F. R. Co., 105 Ga. 274, 30 S. E. 748; Gilbert v. Georgia Railroad & Banking Co., 104 Ga. 412, 130 S. E. 673. If it is desired to gain jurisdiction of an owner or lessor of a railroad line operated by another corporation there must be an appropriate allegation that the line is so operated. South western R. Co. v. Vellines, 14 Ga. App. 674, 82 S. E. 166. The making or obligation to perform the contract within the county must be pleaded to sustain venue elsewhere than at the principal place of business. Corley & Dassett v. Georgia Railroad & Banking Co., 49 Ga. 626. As to foreign torts it may be waived if no plea or demurrer be interposed. See Central of Georgia R. Co. v. A. C. Dowe & Co., 6 Ga. App. 858, 65 S. E. 1091. 12 Allegation of defendant corporation's residence is not essential to lay venue where timber cutting occurred by a corporation having an agent and office in the county, the action being for damages and for an injunction (Civ. Code, § 1900). Gillis v. Hilton & Dodge Lumber Co., 113 Ga. 622, 38 S. E. 940. 13 In order to found jurisdiction on a venue laid in the residence of a codefendant, but where the corporation could not be sued, there must be a cause of action stated against the codefendant; if there is none, jurisdiction fails. D. T. McClellan & Co. v. American Tie & Lumber Co., 135 Ga. 370, 69 S. E. 486. 14 Averment that "at all times herein mentioned" defendant's road ran in the county shows that it "now" runs there. Johnson v. Manhattan & Queens Traction Corporation, 162 N. Y. App. Div. 753, 147 N. Y. Supp. 965. of the statutes fix it as of the place where the cause accrued, or the injury occurred, or where the party then resided, or on other past facts.15 Necessarily such facts should be pleaded, if at all, under a verb of the past tense. § 3050. In federal courts. Inasmuch as there can be no giving of jurisdiction to the federal courts by consent, and as their jurisdiction is a limited, though not inferior one, restricted to certain causes of actions and subjects,16 the bill or complaint must show the jurisdiction consisting either in the fact that a federal question is involved, or that there is a diversity of citizenship, or that one of the other grounds mentioned in the statute exists; but only one is necessary. Of course, the complaint or bill must show the requisite amount in controversy, or if some special subject-matter gives the jurisdiction that must appear. In short, every element of support for the federal jurisdiction ought to be pleaded, even if there is more than one; if a federal question appears by reason of the federal incorporation of the party it does not matter that the allegations are deficient to make out jurisdiction by reason of diversity.17 There is very little about any of the grounds of jurisdiction that has anything to do with corporations except the fact of the citizenship of the corporation relatively to the parties on the other side of the controversy, and the possible fact that plaintiff sues as the holder or assignee of an instrument made by a corporation within the exception of the statute as to suits by assignees.18 Alleging a federal incorporation shows a federal question,19 but a bare allegation of a federal franchise owned by the corporation without any suggestion that it is being infringed does not suffice.20 The 15 See § 2978 et seq., supra. 16 See § 2965 et seq., supra, and see the grounds of jurisdiction enumerated in Judicial Code, § 24. 17 United States Freehold Land & Emigration Co. v. Gallegos, 89 Fed. 769. 18 See Judicial Code, § 24. 19 United States Freehold Land & Emigration Co. v. Gallegos, 89 Fed. 769. Averment of incorporation under act of congress applying Arkansas laws to Indian Territory shows a federal incorporation. Canary Oil Co. v. Standard Asphalt & Rubber Co., 182 Allegation that C company "is a corporation operating in" a state shows enough where it is federally incorporated. Scott v. Choctaw, O. & G. R. Co., 112 Fed. 180. 20 Averment of a federal bridge franchise and an attempt to tax the bridge property by the state shows no federal question without further allegation that a federal exemption was granted. St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 42 L. Ed. 315. |