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same exemption if he comes as a witness in the cause. That both
party who cannot attend to his suit without being liable to such service would be under a personal restraint from which those engaged in the administration of justice have a right to be free. In Miles v. McCullough, 1 Bin. 77, the summons was served upon the defendant while attending court, and, on motion to vacate such service, the court said that it had been repeatedly ruled that a suitor was equally privileged from the service of both capias and summons under such circumstances, and set the service aside. In Plimpton v. Winslow, 9 Fed. 365, the defendant was served with process by his adversary in New York while attending the examination of witnesses before an examiner, where the testimony was being taken in a suit pending in the circuit court for the district of Massachusetts. Judge Blatchford said, upon motion to set aside the service of the subpoena, on the ground that the privilege of the defendant was violated:
"The defendant attended as a party before the examiner. The examination was made a regular proceeding in the suit in Massachusetts. The defendant had a right to attend upon it in person, whether he was to be himself examined as a witness before Mr. Thompson, a special examiner, or not, and he had a right to be protected, while attending upon it, from the service of the papers which were served in this suit. He attended in good faith. The examination was pending, and he was served during the interval of an adjournment. The privilege violated was a privilege of the Massachusetts court, and one to be liberally construed for the due administration of justice.”
The defendant's motion to vacate the service was granted. To the same effect are Brooks v. Farwell, 1 McCrary, 132, 4 Fed. 166, and Larned v. Griffin, 12 Fed. 590, where the authorities are fully recapitulated in the opinion of Judge Colt. See, also, Atchison v. Morris, 11 Fed. 582.
Without further citations, which are rendered unnecessary by the able discussions of the question to be found in the cases given, it is clear that the defendant is entitled to have this motion granted. While it is true that no examination of witnesses was pending at the time, nor was he here under the compulsion of legal process, yet, as a party to the suit pending in this court, he had a right to be present in his own interest at any stage of the litigation, when advised by his counsel that his presence was necessary for the proper conduct of the cause. He attended in good faith, and, although the question under discussion at the time of his arrival and during his stay was purely legal, it cannot be said, in view of the facts set forth in his affidavit and that of his counsel as to the necessity of his presence, that he was needlessly here. The decision of the court upon the demurrer would, if adverse to him, necessitate the amendment of the bill, and presumably require his presence here for that purpose, and for the verification of the amended bill, as well as for the purpose of consultation with his counsel as to the course to be pursued in the cause. It is not claimed, nor is it a fact, that the cause of action in the plaintiffs' declaration in this cause arose during Lant's presence here, but the contrary is impliedly admitted, as it appears that in this suit he is proceeded against for matters which transpired long prior to his coming to attend the argument of the demurrer. Notwithstanding the postponement of the argument, the defendant was still under the protection of the court as to
the matter for which this suit is' brought, and there seems to be no reason or principle upon which he can be held to have lost his privilege because, during the adjournment of the argument, he proceeded to Ann Arbor upon business connected with that litigation. The protection accorded him as a suitor, so long as he did not misconduct himself, it seems to me entitled him, during the pendency of the hearing, to go anywhere within the district while the hearing was pending. The motion to set aside the service of process in this cause must therefore be granted.
UNITED STATES GRAPHITE CO. v. PACIFIC GRAPHITE CO.
(Circuit Court, E. D. Michigan. May 16, 1895.)
1. SERVICE OF PROCESS-OFFICER OF FOREIGN CORPORATION.
Service of process upon an officer of a foreign corporation casually in the state where the service is made, but where such corporation has no place of business nor agency, is insufficient to confer jurisdiction, though such officer was at the time engaged upon business of the corporation. 2. SAME-MICHIGAN STATUTE-CAUSE OF ACTION ACCRUING IN THE State.
By a contract made in Michigan, defendant agreed to sell to plaintiff certain graphite ore, to be delivered on board the cars at T., in Mexico, and to be paid for in notes payable in Michigan. Held, that a cause of action for nondelivery of the ore arose in Mexico, and gave no right to make service of process in accordance with section 8145, How. Ann. St. Mich., providing for service on foreign corporations where the cause of action accrues within the state.
This is an action of assumpsit to recover damages for the alleged breach of a contract, which the declaration claims was committed in the state of Michigan.
The plaintiff is a corporation organized and existing under the laws of the state of Michigan. The defendant is a corporation organized under the laws of California, and has its office at San Francisco, in that state. It has no office nor agency in Michigan, and none elsewhere than at San Francisco, except an agency in Mexico, where its mines are situated. The suit is upon a written contract between the parties, which is set forth in full in the declaration. The defendant was the owner of certain graphite mines in Mexico, and in 1891, by the contract sued upon, agreed to sell its ore exclusively to the plaintiff. The plaintiff, on its part, agreed to take a certain amount yearly, the ore to be delivered on board of the cars at Torres, in Mexico, consigned to plaintiff. The plaintiff's principal office is at Saginaw, Mich., and payment was to be made for the ore by remitting the amount due in New York exchange within 15 days after the receipt at Saginaw of the bill of lading. At the time of the entering into of the contract, the plaintiff advanced the defendant $6,000, for which it received defendant's promissory notes. The contract provided that out of all payments due on the shipment of ore, five dollars per ton was to be retained by plaintiff, and applied on the defendant's notes. The plaintiff also agreed to erect a factory at Saginaw. The declaration sets up a breach of this contract, in that the defendant did not furnish the ore as agreed, whereby plaintiff has suffered damage in the loss of the money invested in the factory and in employing agents and advertising to promote and establish its business; and, second, in the loss of profits. Service was had upon James O. Roundtree, the president of the defendant corporation, who was casually within this state, and, as it is claimed by plaintiff, in the service of, and attending to the business of, the defendant corpora
tion. Mr. Roundtree's affidavit shows that he is a resident and inhabitant of the city of San Francisco, Cal., and is president of defendant corporation, and at the time the summons issued in this cause was served upon him he was in the city of Detroit, state of Michigan, for a few days, on business of the corporation. On the 13th of February, 1894, while temporarily here, as aforesaid, Mr. Roundtree was served with the summons in this cause. The defendant, appearing specially by its attorneys for the purpose of the motion, moves the court that the writ of summons, the return of service thereof, and all proceedings in the cause be quashed and held for naught, for the following reasons: "(1) Because the defendant is not an inhabitant of this district, nor was said defendant found therein at the time of the service of said writ. (2) Because said defendant is a foreign corporation, and has never engaged in business within the state of Michigan, so as to be amenable to process issued out of any of the courts of Michigan, either state or national. (3) Because the defendant is a foreign corporation, and the cause of action alleged in the declaration did not accrue within the state of Michigan. The service of process in this cause was made under and in accordance with section 8145, How. Ann. St. Mich., which provides that a foreign corporation may be sued in this state in all cases 'where the cause of action accrues within the state of Michigan.'"
Charles S. McDonald and James H. McDonald, for plaintiff.
SWAN, District Judge (after stating the facts). The validity of the service of process is rested upon the construction given to section 8145, How. Ann. St. Mich., by the supreme court of Michigan. It is also necessarily claimed that the plaintiff's cause of action accrued in the state of Michigan. In Shickle, H. & H. Iron Co. v. Wiley Const. Co., 61 Mich. 226, 28 N. W. 77, the court held that, if the officer of the foreign corporation is within the jurisdiction, and served there, such service is valid to bind the corporation, and subject it to the jurisdiction of the court; and the defense that the officer served was not here on the business of the corporation cannot avail the defendant; and that the statute was passed for the purpose of abrogating the rule enunciated by the supreme court of Michigan in Newell v. Railway Co., 19 Mich. 336. The contention of the defendant is that, under the act of congress approved March 3, 1887, and amended August 13, 1888, defining the jurisdiction of courts of the United States, this court is without jurisdiction. The provision of these acts involved is that:
"No civil suit shall be brought before either of said courts against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant."
It is unnecessary to review at length the authorities bearing upon the sufficiency of this service to confer jurisdiction upon this court. The exact question, since the argument of this cause, has been decided by the supreme court of the United States in an opinion delivered by Mr. Justice Gray in the case of Goldey v. Morning News, 15 Sup. Ct. 559, 156 U. S. 518, in which the defendant had "no place of business, officer, agent, nor property" in the state where process was served. The learned justice says:
"This writ of error presents the question whether, in a personal action against a corporation, which is neither incorporated nor does business within the state, nor has any agent or property therein, service of the summons upon its president, temporarily within the jurisdiction, is sufficient service upon the corporation. *** It is an elementary principle of jurisprudence that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice within the jurisdiction, upon him, or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service. Whatever effect a constructive service may be allowed in the courts of the same government, it cannot be recognized as valid by the courts of any other government. [Citing authorities.] *** So the judgment rendered in the court of one state against a corporation neither incorporated nor doing business within the states must be regarded as of no validity in the courts of another state or of the United States, unless service of process was made in the first state upon an agent appointed to act there for the corporation, and not merely upon an officer or agent residing in another state, and only casually within the state and not charged with any business of the corporation there. Insurance Co. v. French, 18 How. 404; St. Clair v. Cox, 106 U. S. 350, 357, 359, 1 Sup. Ct. 354; Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U. S. 98-106, 11 Sup. Ct. 36; Railway Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859; In re Hohorst, 150 U. S. 653, 663, 14 Sup. Ct. 221. * * *The jurisdiction of a circuit court of the United States depends upon the acts passed by congress pursuant to the power conferred upon it by the constitution of the United States, and cannot be enlarged or abridged by any statute of a state."
In that case the suit had been originally commenced in the state court, and was removed to the circuit court of the United States, where the defendant appeared specially by its attorneys for the purpose of applying for an order setting aside the summons and the service thereof, filed a motion, supported by affidavits of its president and of its attorneys, to set aside the summons and the service thereof on the ground "that the said defendant, being a corporation organized under the laws of the state of Connecticut, and transacting no business within the state of New York, not having any agent clothed with authority to represent it in the state of New York, cannot legally be made a defendant in an action by a service upon one of its officers while temporarily in said state of New York." The cases cited in the opinion of the court, and the extracts therefrom given above, are decisive of the first and second grounds of this motion.
James O. Roundtree, the president of the defendant company in this cause, was not a resident agent of the corporation, for it had none such in Michigan; and if it be conceded that, while temporarily here, at the time of the service made upon him, he was engaged in negotiations concerning the business of the company, this is not sufficient to subject the defendant to the jurisdiction of any court in this state by reason of service made upon him. See, also, Golden v. Morning News, 42 Fed. 112; Good Hope Co. v. Railway Barb Fencing Co., 22 Fed. 635; Reifsnider v. Publishing Co., 45 Fed. 433; U. S. v. American Bell Tel. Co., 29 Fed. 17, 34.
3. The third ground of the motion presents the question of the effect of the words, "where the cause of action accrues within the state of Michigan." The statutory method of service authorized by section 8145, supra, is conditioned upon the existence of this fact.