Submitted April 24, 1905. Decided May 29, 1905.
This court can review by appeal under § 5 of the act of March 3, 1891, the judgment of the Circuit Court dismissing the bill on the sole ground that it never acquired jurisdiction over the defendant, a foreign corporation, for lack of proper service of process. Board of Trade v. Hammond Elevator Co., ante, p. 424. Where the foreign corporation was doing no business and had no assets in the State, service upon a former officer residing therein, held, insufficient under the circumstances of this case.
Mr. Noah C. Rogers for appellant:
The defendant is subject to the jurisdiction of the New York court by the provision in its articles of incorporation fixing its principal place of business there. People v. Geneva College, 5 Wendell (N.Y.), 211; Attorney General v. Oakland Co. Bank, 1 Walker C.L. (Mich.) 90, 97.
Having made it one of the conditions of its creation that its principal place of business should be in the city, county and State of New York, it will not be heard now to deny this jurisdiction. The defendant has not amended its charter, revoked the agency of its treasurer or withdrawn its place of business to another jurisdiction. Canada Southern R. Co. v. Gebhard, 109 U.S. 527, 537.
The service of the writ of subpoena on the defendant's treasurer was sufficient to give the court jurisdiction. Am. Locomotive Co. v. Dickson Co., 117 F. 972; McCord Lumber Co. v. Doyle, 97 F. 22; Conn. Mut. Life Ins. Co. v. Spratley, 172 U.S. 602; Merchants' Mfg. Co. v. Grand Trunk Ry. Co., 13 F. 358.
Mr. Benjamin N. Cardozo for appellee:
The defendant has no domicil or abode in the State of New York; it is not engaged in business in that State; and the service of the subpoena on its treasurer was ineffective to bring it into court. Conley v. Mathieson Alkali Works, 190 U.S. 406; Goldey v. Morning News, 156 U.S. 518; Construction Co. v. Fitzgerald, 137 U.S. 106; Geer v. Mathieson Alkali Works, 190 U.S. 429; Caledonian Coal Co. v. Baker, 196 U.S. 444; Sharkey v. Indiana c. Ry. Co., 186 U.S. 479; Wabash Ry. Co. v. Brow, 164 U.S. 271; In re Keasbey, 160 U.S. 221; St. Clair v. Cox, 106 U.S. 350; Stock Exchange v. Board of Trade, 125 F. 463; Martin v. Asphalt Co., 130 F. 394; McGillin v. Claflin, 52 F. 657; Good Hope Co. v. Fencing Co., 22 F. 635.
The cases which attribute controlling force to the designation of the place of business, as contained in the certificate of incorporation, have relation only to the question of the situs of the corporation within the State of its origin. They have no bearing upon its situs without that State. Western Transportation Co. v. Scheu, 19 N.Y. 408; Galveston R.R. v. Gonzales, 151 U.S. 496.
The question in issue is not a question of the jurisdiction of the court below within the meaning of section 5 of the act of March 3, 1891, and an appeal directly from the Circuit Court cannot be sustained. Courtney v. Pradt, 196 U.S. 89; Bache v. Hunt, 193 U.S. 523; Louisville Trust Co. v. Knott, 191 U.S. 225, 232; Blythe v. Hinckley, 173 U.S. 501; Mex. Cent. Ry. Co. v. Eckman, 187 U.S. 429.
The question that the Circuit Court decided is not one as to the jurisdiction of the Federal judiciary. That the suit is cognizable in the Circuit Court of the United States for the Southern District of New York has neither been disputed by the appellee nor denied by the court below. The complainant is a citizen of the State of New York, and a resident of the Southern District of New York; the defendant is a citizen of the State of West Virginia. Shaw v. Quincy Mining Co., 145 U.S. 444. Indisputably, therefore, there exists that diversity of citizenship which confers jurisdiction of the cause on the Federal courts. The trouble is that the defendant has not been served with process. An attempt has been made to bring it into court by service of the subpoena on an agent, and the sole question is whether that service was effective. In passing on that question, the court has been governed, not by any consideration peculiar to the jurisdiction of the Circuit Courts, but by considerations of general jurisprudence, applicable, as this court has declared, to all tribunals.
The Circuit Court has certified no question for review. It has not disputed its jurisdiction of the subject matter of the cause. It has not suggested that the parties, if properly brought before it, are beyond its competence, or are rendered immune from prosecution in the Circuit Courts. It has merely held that the defendant has not yet been served with process. That is not a question of jurisdiction within the meaning of the statute.
The order should be affirmed or the appeal dismissed.
It is objected, in the first place, by the appellee that the appellant had no statutory right to appeal directly to this court from the order setting aside the service of the subpoena. It is asserted that the case does not involve the jurisdiction of the court below within the meaning of section 5 of the act of March 3, 1891, inasmuch as the jurisdiction of the Circuit Court as a Federal court is not questioned, the jurisdiction being denied upon grounds alike applicable to any other judicial tribunal, state or Federal, under the same circumstances. This case is, however, on that point governed by that of Board of Trade v. Hammond Elevator Co., decided this day ( ante p. 424), where it is held that the order is reviewable by this court under the section above mentioned.
Regarding the case as properly here, the question is whether the service made upon the treasurer of the appellee corporation was a valid service upon the corporation itself. We think it was not. It is perfectly apparent that the corporation was, at the time of the service on the treasurer, doing no business whatever within the State of New York, and that it had never done any business there since it was incorporated in the State of West Virginia. While we have lately held that, in the case of a foreign corporation, the service upon a resident director of the State where the service was made was a good service where that corporation was doing business within that State, Pennsylvania Lumbermen's c. Co. v. Meyer, 197 U.S. 407, yet such service is insufficient for a court to acquire jurisdiction over the corporation where the company was not doing any business in the State, and was situated like this company at the time of the service upon the treasurer. Conley v. Mathieson Alkali Works, 190 U.S. 406.
The order of the Circuit Court was right, and is