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 —
"(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
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 ...