United States District Court, Northern District of Illinois
April 28, 1964
WALTER SHRINER, PLAINTIFF,
JO S. STONG AND DARRELL FOSS, EXECUTORS OF THE ESTATES OF MARY COPHINE DAVIDSON AND RAY F. DAVIDSON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Campbell, Chief Judge.
This cause is presently before me on a motion by the defendants
to dismiss the complaint for want of jurisdiction and on
plaintiff's petition for a rule to show cause.
The facts pleaded and argued thus far before me reveal that the
plaintiff is the grandson, and for that matter the only
grandchild of one Walter T. Shriner, deceased. A resident of
Iowa, Walter T. seems to have been both a wealthy and a frugal
man. He and his wife had four children, three sons, one of whom
was the father of the plaintiff, and one daughter, Mary Cophine
Davidson. At the time of his death, December 16, 1955, his wife
and three sons had predeceased him — partially understandable by
the fact that he was then 106 years old. It appears that whatever
estate Walter T. was possessed of either immediately prior to or
at the time of his death passed to his daughter, Mary Cophine
Davidson, who with her husband also lived in Iowa. (As to that
part of his estate which he had not parted with prior to his
death it is somewhat difficult for me to understand such a
distribution in light of references to his having died
Mary Cophine Davidson died on July 17, 1963. Her will left the
bulk of her estate to her husband, Ray F. Davidson, who himself
died two months later on September 16, 1963. Ray F. Davidson's
will, which for all practicable purposes was identical with the
will of Mary Cophine Davidson, did not favor the plaintiff with
any bequest. Both Davidson wills were filed for probate in the
Henry County, Iowa, District Court. Plaintiff filed objections to
both wills and the matters are presently pending in the Henry
County Court. (Although unnecessary to a determination of the
issues before me I call plaintiff's attention to Markham v.
Allen, 326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 as it relates to
the instant prayer for injunctive relief.)
Plaintiff's instant complaint generally alleges an oral family
agreement whereby the last survivor — i.e. the plaintiff — was to
have been left the remaining family estate. The defendants
allegedly schemed and conspired successfully, according to the
complaint, to deprive plaintiff of that which should have been
Defendant Darrell Foss, was a friend of the Davidsons and is
apparently the major beneficiary in their wills. Defendant Jo S.
Stong was the Davidson attorney. Albertine Foss Soenke was a
friend of the Davidsons; and, Thomas S. Bell is an attorney
appointed by the Probate Court in Iowa as Special Administrator
of the Davidson Estates.
In what is an apparent attempt to plead diversity jurisdiction
the complaint treats the citizenship of the respective parties as
follows. Plaintiff "resides in Illinois". Defendants Stong and
Foss, sued in their representative capacity as Executors, are "of
Henry County, Iowa". Defendant Bell is also "of Henry County,
Iowa". No additional reference or mention is made of the
citizenship of Foss as sued in his individual capacity. Defendant
Soenke "resides" in New Mexico.
The complaint is totally defective in that on its face it fails
to comply with the jurisdictional pleading requirements
specifically set forth in § 1332 of Title 28 U.S.C. In this
regard I would call plaintiff counsel's attention to the
December 20, 1961, Notice to the Bar of this Court, a Notice
extensively promulgated in the Chicago Daily Law Bulletin, the
official publication of this Court. (See also Burkhardt v. Bates
et al., 296 F.2d 315 (8 Cir. 1962) in relation to pleading
residency in lieu of citizenship.)
The above jurisdictional shortcomings of the complaint,
although vitally necessary to confer jurisdiction upon this
court, are for the most part curable by an amendment where, as it
appears here, true diversity does in fact exist. My usual
practice in such situations is to grant the plaintiff leave to
amend to properly plead jurisdiction. Parenthetically I might
observe that § 1653 of Title 28 which authorizes such action must
be based upon some wholly chimerical legal fiction unintelligible
to me; either upon the allegations of a complaint a court has or
does not have jurisdiction and if the latter is the case I fail
to see how it, the court, can be deemed to have the power to give
such leave to amend so as to properly plead and give itself
jurisdiction. However, despite insufficient pleading still
another reason exists why this court does not have jurisdiction
over the instant complaint.
Personal jurisdiction over the bodies of the defendants must be
obtainable and obtained. None of the defendants are residents of
this State and further, none were served in this State. The 1963
Amendment to Rule 4(e) of the Federal Rules of Civil Procedure
(Title 28) resolved any prior uncertainties as to permissible
methods of adequately obtaining service upon such nonresidents.
Generally, the Rule justifies the use by federal courts of the so
called "long arm" statute, if any, of the state in which the
district court is held. Illinois has such a statute.
Ill.Rev.Stat. Ch. 110, § 17.
As applicable here § 17 conditions its use to situations
wherein the person sought to be served has, in the State of
Illinois, engaged in one of the four enumerated acts spelled out
in the statute. The two acts relevant to this discussion are "the
transaction of any business" or "the commission of a tortious
act". The statutes application and use is further qualified by
limiting its scope only to those actions which arise from the
doing of the requisite act.
The instant complaint viewed in its best light falls far short
of sufficiently pleading a § 17 situation. The alleged scheme or
conspiracy purportedly occurred only in the State of Iowa.
Commendably, plaintiff's attorney is cognizant of this fact and
does not attempt to claim a tortious act commission in this
State. He does however, in an amendment to this complaint,
attempt to establish a "doing business", jurisdictional basis.
This attempt falls far short of satisfying the minimal
requirements of "doing business". Initially, no doubt for the
most part a consequence of the obvious facts, none of the
defendants are alleged to have performed any business in
Illinois. Rather, it is alleged that Walter T. Shriner "* * *
during his lifetime maintained an active account at the Harris
Trust and Savings Bank of Chicago, doing much of his banking and
stock transferring directly with said bank from his home in Iowa
* * *". He also "* * * continually did business with the
brokerage house in Chicago, Illinois known as Farrwell-Chapman
Co. * * *". And as to Mary Cophine Davidson, after her father's
death, she * * "continued to do business * * *" with the
brokerage firm and "* * * it is believed * * * continued to use
said bank for a period after her father's death."
Assuming all of the above acts had been properly pleaded as to
the defendants, still I am of the opinion and I do now find that
there is not or would not be a sufficient showing or pleading as
would satisfy the Illinois "doing business which gives rise to
the suit" requirement, much less the ever present constitutional
requirement of "minimum contact". International Shoe Co. v.
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Orton v.
Woods Oil & Gas Co., 249 F.2d 198 (7th Cir.); Rensing v. Turner,
D.C. Ill., 166 F. Supp. 790; Grobark v. Addo
Machine Co. Inc., 16 Ill.2d 426, 158 N.E.2d 73.
Accordingly, the cause is dismissed for want of jurisdiction.
Plaintiff's "Petition for Rule to Show Cause" now becomes moot
and need not be and is not considered.
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