Lemke v. Kita

17 Mich. App. 642 (1969) 170 N.W.2d 263

LEMKE
v.
KITA

Docket No. 5,200.

Michigan Court of Appeals.

Decided June 23, 1969. Rehearing denied September 5, 1969. Leave to appeal denied November 18, 1969.

Riseman, Lemke & Piotrowski, for plaintiff.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian (Wolf, Popper, Ross, Wolf & Jones of New York City, of counsel), for defendant.

BEFORE: FITZGERALD, P.J., and LEVIN and T.M. BURNS, JJ.

Leave to appeal denied November 18, 1969. See 382 Mich. 795.

PER CURIAM:

Plaintiff commenced this action against Adolf Kita and others, jointly and severally. Mr. Kita was consul general of the Polish People's Republic at Chicago, Illinois for various States, including Michigan.

Mr. Kita moved to quash the service of summons and for dismissal of the complaint on the ground that the courts of this State are without jurisdiction to entertain a suit against a consul of a foreign state. The trial judge granted judgment dismissing the complaint as to Mr. Kita.

We affirm. The relevant statute is entirely clear:

"The district courts shall have original jurisdiction, exclusive of the courts of the States, of all actions and proceedings against consuls or vice consuls of foreign states." 28 USCA, § 1351. (Emphasis supplied.)

Manifestly, an action against the consul of a foreign state, such as Mr. Kita, may not be commenced in the circuit court.

Defendant did not waive the lack of jurisdiction of the circuit court when he asserted such lack of jurisdiction by motion to quash and dismiss. Nor is there merit in plaintiff's claim that Mr. Kita waived his right to assert this lack of jurisdiction by failing to remove the case to the Federal courts. Mr. Kita had no obligation so to remove the case, even if removable. His motion to quash and dismiss was timely.

Affirmed. Costs to appellee.