Summary
In Eddington v. Texas N.O.R. Co., 83 F. Supp. 230 (S.D.Tex. 1949), a district court in Texas treated the local and transitory distinction as a venue question.
Summary of this case from Keller v. MilliceOpinion
Civ. A. No. 4345.
March 8, 1949.
W.D. Caldwell, Archie D. Gray, Raymond A. Corcoran and Elston Law, all of Houston, Tex., and Will E. Orgain, of Beaumont, Tex., for defendant.
Action by Mrs. Ada McFaddin Eddington and husband, Will O. Eddington, against Texas New Orleans Railroad Company to recover title and possession of a tract of land. On defendant's motion to dismiss the action.
Case transferred.
No appearance for plaintiff.
This is a suit by Plaintiffs, who alleged that they are citizens of the State of Louisiana, against the Texas New Orleans Railroad Company, which is alleged to be a citizen of Texas. The amount in controversy is alleged to exceed $3000, exclusive of interest and costs. There is no question about the jurisdiction, but there is a question about the venue, and Defendant has moved to dismiss for that reason.
The suit is to recover title and possession of a tract of land in Jefferson County, Texas, which is in the Beaumont Division of the Eastern District of Texas, and it is perfectly plain that the venue is there, and not here. See Aldrich Mining Co. v. Pearce, 169 Ala. 161, 52 So. 911, Ann.Cas. 1912B, 288; Appalachian Electric Power Co. v. Smith, D.C., 4 F. Supp. 3; Arizona Commercial Mining Co. v. Iron Cap Copper Co., 236 Mass. 185, 128 N.E. 4; Brown v. Caldwell, 10 Serg. R., Pa., 114, 13 Am. Dec. 660; Choice v. Texas Co., D.C., 2 F. Supp. 160; Elk Garden Co. v. F. W. Thayer Co., C.C., 179 F. 556; Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913; Elliott v. Powell, 10 Watts, Pa., 453, 36 Am.Dec. 200; Hunter v. United States Department of Agriculture, D.C., 69 F. Supp. 377; Matarazzo v. Hustis, D.C., 256 F. 882; Mather v. Trinity Church, 3 Serg. R., Pa., 509, 8 Am.Dec. 663; Northern Indiana Ry. Co. v. Michigan Central Ry. Co., 15 How. 233, 56 U.S. 233, 14 L.Ed. 674; Robinson v. Seatex Oil Co., D.C., 57 F. Supp. 581; Tyler v. Stanolind Oil Gas Co., 5 Cir., 77 F.2d 802.
But the case should not be dismissed. Under a recent Statute, Section 1406, Title 28 U.S.C.A. effective September 1, 1948, the case should be transferred to the United States District Court for the Eastern District of Texas, Beaumont Division, and that will be done.
Let an Order be drawn and presented accordingly.