WOODSTOCK IRON 00.
CLEWS ". WOODSTOCK IRON
Wwcuf.t Court, S. D. New York. October 13,1890.)
SEnVICBOJ' PROCESs-FoREIGN CoRPORATION-DOING BUSINESS IN BTATlI.
A foreign corporation, which has done no business in New York beyond negotiating a mortgage on its property, and having the bonds secured thereby put on list of the New York Stock Exchange, is not engaged in business in the state, and no jurisdiction over it is acquired by service of summons on its president while temporarily in the state for those purposes. By appearing specially, and removing the cause from a state to a federal court, the corporation does not waive the dght to object to the jurisdiction.
SPECIAL AJ'PEARANCE-W.<lIVER OF OBJECTIONS.
Motion to Set Aside Service of the Summons. is an Alabama' corporation. SumIponsin .an action brought in the state court was served on its president, Alfred L. Tyll:lr. That officer was a resident of Alabama, and had no residence in. the state of New York. He was at the time of service in New York city, attending to the business of various enterprises, including thl:l negotiat,ion for said defendant of a certain loan upon mortgage afits property. In order, to obtain such loan he presented the application of said defendant, on June 16, 1890, to the committee on stock-list of the New York Stock Exchange, asking to have the bonds secured .bysaid mortgage listed on the stock exchange. Thereaftj3r, on three or four occasions, he appeared before the committee to urge the granting of the application and explain the' same. On June 25th the committee made areport favorable to the application. The bonds were sold by said Tyler principallY to two firms of brokers, and were admitted to the list July 22, On July 18, 1890, the summons waf! served·.. The regular business of the defendant, which is carried on at the, city of Anniston, Ala., is the development of lands owned by it in said statE!, mining and transportation of ores therefrom, and the Ir.\anumctureof pig-iron and other manufacturing connected therewith. Deiendantremoved the .casl:l into this court, and moved to set aside the for that purpose. service of the'summons, having appeared Str01lg & Cadwalader, for the motion. Noah Davis, contra.
LACOMBE, Circuit Judge. In Good Hope Co. v. Rat'lway B. F. Co., 22 Fed. Rep. 635, it was held that service of summons upon the president, secretary, or treasurer of a foreign corporatkm,which is not engaged in business in this state, would be inoperative to confer jurisdiction. The decision was rendered after the converse of that proposition had been announced by the court of appeals, (construing section 432 ofthe New York Code,) this court quoting with approval the language of the opinion in Moulin v. Insurance 00., 24 N. J. Law, 224, which characterized a. law similar to that of this state as " so contrary to natural justioe and to-the principles of internationallaw-that courts of other states ought not to sanction it.» As indicated in Golden v. Morning New81 42
Rep. 112, that decision must be accepted as settling the law in this circuit. Its principles lire as applicable to causes wnich are removed as to those which are not. It would be absurd to hold that proceedings in a state court were void on the theory that such court acquired no jurisdiction o.f the party because its attempted service of process was abhorrent to natural justice and international law, and at the same time to hold that a federal court could administer justice under such a service after the cause had been removed to its forum. Nor does removal and special appearance by the defendant waive its right to avail of a defectservice. Harkness v. Hyde, 98 U. S. 476; Miner v. Markham, 28 Fed. Rep. 395. The only question, 'therefore, which is left for decision upon this application is whether the corporation defendant was at the till)e of service of the summons engaged in business in this state. That question must be determined by what it had done, or was doing, at that time, rather than by what it might do thereafter. That it will ably hereafter provide a regular agency in this state for the continuous transaction of the business of registration and transfer of its bonds and payment of the interest on the coupons during the continuance· of the mottg!tg4;l is immaterial. The only business which it had done up to the 18th July was the borrowing of money upon its bond and mortgage, and the obtaining from the stock exchange of the privilege of having such' bonds called on the list of securities dealt in on its floor. It could appaJ:'Emtly have secured this privilege, anti could have sold its bonds by cOlTespondence. It kept no office here. It did not continuously, or even for a period of some duration, carryon here the business which it was organized to carryon, and by the regular transaction of which it gave evidence of its continued existence. It cannot, therefore, be held. under the authorities that the defendant was, at the time when Tyler WllS served, engaged in business in this state so as to make service of the sum..; mons on him efficient to bind the corporation. U. S. v. American BeU Tel. Co., 29 Fed. Rep. 37; Good Hape Co. v. Railway B. F. 00.,22 Fed; Rep. 635; Hunter v. Irnprovem,ent 00., 26 Fed. Rep. 299; St. Louis WireMiU Co. v. Consolidated Barb- Wire 00., 32 Fed Rep. 802; Carpenter 'V. 00., Id. 434. Motion granted.
ISAACS 1.1. McNEIL et
(O"'cuit Oourt, S. D. Washington. November 10, 1890.)
Damages cannot be recovered in an action against election officers, for deprivation of plaintiff's right, under the laws of Washington Territory, to vote, (if such right eXisted,) where the decision of the board as to her right to vote was controlled by and followed a previous decision of the supreme court of the territory, which decision had not been reversed or overruled, and where no rudeness or malicious conduct on the part of the defendants is charged. (S1/Uabua bll the Oourt.)
JllLll:OTIVB FRANOHISB-DENIAL 011' RIGHT-STARE DEOISIS.