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MORGAN v. HECKLE

March 11, 1959

J. P. MORGAN, PLAINTIFF,
v.
CHARLES E. HECKLE, DEFENDANT



The opinion of the court was delivered by: Juergens, District Judge.

The complaint here alleges that plaintiff is a resident of Illinois and defendant a wholesaler and retailer of grass seed at Memphis, Tennessee; that Claude E. Lee, a grain elevator operator, but not handling grass seed, at plaintiff's request and as his agent placed a seed order with defendant for 25 bags of Milo Mays seed; that the seed was supplied to plaintiff's agent for plaintiff by defendant at the Viking freight depot at Anna, Illinois, where plaintiff accepted it; that the seed was full of noxious weed seeds.

Defendant filed his motion to dismiss or in lieu thereof to quash the return of service of summons on the ground that the defendant is a resident of Tennessee; is not and was not a resident of Illinois; was not physically present in or doing business in Illinois at the time of the matters complained of or at any other time and had no agent in Illinois. In the alternative defendant asks that the cause be transferred to the United States District Court for the Western Division of the Western District of Tennessee; in the alternative to dismiss because the complaint does not state a cause of action upon which relief can be granted and for various other reasons which are unnecessary to state here because of the position the Court takes herein.

The immediate question to be determined is the jurisdiction of this Court over the person of the defendant.

The affidavit of the defendant Charles E. Heckle in support of his motion to dismiss states in substance that he is a resident of Memphis, Shelby County, Tennessee; that he is engaged in the business of packaging and selling commercial and garden seed, garden supplies and a wide variety of related items; that he has never maintained a place of business other than in Memphis, Tennessee; that he has never maintained an agent, salesman, distributor, or any other person working for him or in his behalf in the State of Illinois; that his interstate shipments are confined to the States of Arkansas, Mississippi and Missouri; and that with the exception of the transaction set forth in the complaint in this action, he has never sold anything to anyone in the State of Illinois.

He further states that a telephone call was received by one of his employees in Memphis, Tennessee from Claude E. Lee in Anna, Illinois, and a verbal order for 25 bags of Milo Mays grass seed was placed in June, 1955; that this seed was shipped to Mr. Lee by Viking Motor Freight c. o. d. Anna, Illinois, and payment was received in Memphis, Tennessee.

He further states that at no time was he physically present in or doing business in the State of Illinois in connection with this sale; that it was an isolated transaction and no sales have been made to Mr. Lee or anyone else in the State of Illinois since that time.

No counter-affidavit has been filed by the plaintiff.

In Illinois the question is controlled by Illinois Civil Practice Act, Section 17 (Ill.Rev.Stat. 1957, Ch. 110, § 17) which in pertinent part provides as follows:

    "17. § 17. Act submitting to jurisdiction —
  Process.
    "(1) Any person, whether or not a citizen or
  resident of this State, who in person or through
  an agent does any of the acts hereinafter
  enumerated, thereby submits said person, and, if
  an individual, his personal representative, to
  the jurisdiction of the courts of this State as
  to any cause of action arising from the doing of
  any of said acts:
    "(a) The transaction of any business within
  this State".

The above section was held constitutional in the recent case of Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, 680, in which Mr. Justice Schaefer, in a well ...


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