Scott v. Hobe

Winslow, J. It is insisted by the appellant that the state courts have no jurisdiction of this action, because the defendant is a vice consul of Sweden and Norway and can only be sued in the courts of the United States. The defendant was a trading consul, the action here brought is one which arises out of his business, and the principle of international law is that a trading consul is liable to the ordinary processes of [242] law in all that concerns his trade, in the same way as a native merchant. Coppell v. Hall, 7 Wall. 542. The defendant is therefore amenable to the jurisdiction of the state courts, unless that jurisdiction has been taken away by the constitution and laws of the United States,— for the state courts have jurisdiction unless it has been taken away; the United States courts have no jurisdiction unless it has been given. By the constitution of the United States, the courts of the United States were vested with judicial power extending to “ all cases affecting ambassadors, other public ministers, and consuls,” and in all such cases the supreme court was given “original jurisdiction.” Const. U. S. art. III, sec. 2. A grant of original jurisdiction is not a grant of exclusive jurisdiction ; hence there is nothing in the constitutional clauses just cited which deprives the state courts of jurisdiction. Bors v. Preston, 111 U. S. 252. By the judiciary act of 1189, however (R. S. of U. S. 1874, sec. 711, par. 8), exclusive jurisdiction was vested in the courts of the United States over “ all suits or proceedings against ambassadors or other public ministers, ... or against consuls or vice consuls.” Under this act it was well settled that the jurisdiction of the United States courts was exclusive. Davis v. Packard, 7 Pet. 281; Valarino v. Thompson, 7 N. Y. 576. This paragraph was repealed by ch. 80 of the United States Statutes at Large, passed by the 43d Congress, approved February 18,1875, so that there is now no constitutional or statutory provision vesting exclusive jurisdiction of such causes in the United States courts. In the absence of such provision, or of any treaty provision, the jurisdiction of the state courts seems unquestionable. The same result was reached in Wilcox v. Luco, 118 Cal. 639, 45 L. R. A. 579; and De Give v. Grand Rapids F. Co. 94 Ga. 605. Passing to the merits of the case, the first contention made is that the verdict is contrary to the evidence. It must be sufficient to say with reference to this question that we have [243] ■carefully examined the evidence and are satisfied that there is sufficient evidence to sustain the verdict. It is next contended that the judgment should be reversed •on account of the erroneous admission of evidence. Upon the cross-examination of the defendant, plaint'ff’s attorney was allowed, against proper objection, to show that his (defendant’s) land and lumber business was extensive; that he ■owned considerable amounts of land in various places in this state, and was manufacturing lumber at Knox Mills. This was clearly immaterial, and, if prejudicial, might necessitate reversal of the judgment. Substantially all these facts, however, had previously appeared in the case by evidence which was properly received; hence we do not see how it ■can be said that the defendant was prejudiced. Finally, it is contended that a new trial should have been granted on the ground of newly discovered evidence. It appeared by affidavits filed that defendant had a store at Brantwood, six miles from Clifford, during the time that ■Scott worked for him, and that one Lind was defendant’s clerk in the store, and that Scott did his trading there. Lind’s affidavit shows that Scott had a conversation with him at Clifford in July, 1898, in which Scott told him that he (Scott) was to look after the buildings in consideration of the use of a house free of rent. The plaintiff filed an affidavit denying such statement in toto. The affidavits further showed that neither the defendant nor his attorneys had ever interviewed Lind to see if he knew any facts concerning the case previous to the trial. We think common ■diligence and prudence in preparing for trial would have suggested that Lind be interviewed to ascertain what knowledge he had concerning the matter. He was in defendant’s employ, was within easy access, and had seen plaintiff frequently during his employment, and it would seem quite probable that he might have had some material conversations with the plaintiff. Such applications as this, are not [244] regarded with favor for very obvious reasons. Before a new trial is granted the applicant must make out a case free-from delinquency, and show that, notwithstanding he used all reasonable diligence in preparing his case, the newly discovered evidence escaped his seareh. Edmister v. Garrison, 18 Wis. 594. We do not think such a case was made here- By the Gourt.— Judgment affirmed.