BENTLIF u... LONnON & COLONIAL FlNANCE CORP.
tofore made restraining Said plaintiff from furth er proCeeding against the receiver in the state court was properly allowed t and an order may now be drawn authorizing an injunction to issue perpetually restraining him from further prosecuting said'suit. If said Potterf chooses to avail himseUof the privilege of filing his claim in this court against the receiver he may do SOt and such further proceedings will bedireded as the uities of the case demand. A decree may be prepared in accordance with this opinion.'
COLONIAL FINANCE CoRP.,
(Oircuit Oourt, So D. New Yor7r. December 28, 1890.)
SERVIOE Ol!' PROOESS-FOREIGN CORPORATIONS.
Where an action against a foreign corporation, which neither does business nor has a place of business or property inNew York, is begun under Code Civil Froe. N. Y. § by service upon a director thereof, found in the state, hut not there iu any official capacity or in the business of the corporation, the court acquires no jurisdiction. Defendant may have such Buit dismissed on the ground that the state court acquired no jurisdiotion even after removmi it to the federal court
SAlliE-REMOVAL Ol!' CAUSES-DISMISSAL Ol!' BurT.
At Law. Lester W. Clark, for plaintiff. A. W. Evarts, for defendant.
WALLACE, J. Two questions arise in this case: Jiir81, whether the state court from which this BUit was removed acquired any jurisdiction to render !l judgment in the action against the defendant; and, second,. whether the delendant, after removing the suit to this court, can have it dismissed upon the ground that the state court did liot have jurisdiction. The Code of Civil Procedure, of this state, (section 432, subd. 3,) as construed by the highest court of the state, authorizes an action to be commenced against a foreign corporation if the cause of action arose here, which neither does business nor has a place of business or property within the state, by the service of 8 summons upon a director who may be found here, although when found not here in any official capacity or in the business of the corporation. Hillerv. Railroad Co., 70 N. Y. 223; Pope v. Manufacturing Co. , 87 N. Y.137. The question of the jurisdiction of the state court in the present case depends upon the efficacy of such a service of process. For the reasons stated in the judgment of this court in Goodhope Co. v. Railway Barb-Fencing Co., 22 Fed. Rep. 635, a personal judgment obtained in a suit commenced by such a service only, the defendant not appearing, would not be enforced in this court. If the suit had been commenced by the attachment of property of the defendant found here a different case would be presented; but if the action in the state court had proceeded to judgment, and property belonging to
FEDERAL REPORTER ,
issued upon the judgment, the defendant could have resorted to this court to recover its value upon the theory that the judgment was a nullity. St. Olaire v. Oox, 106 U. S. 350, 1 Sup. Ct. Rep. 354; Pennoyer v. Neff, 95 U. S. 714. Upon the authority of these cases it seems entirely clear that the state court never acquired jurisdiction to adjudicate ' the action. If the plaintiff could not have obtained a in the state court which would have any validity whatever when called in question here, because of want of jurisdiction, what reason is there for denying to the defendant the right to challenge the jurisdiction at the threshold of the controversy? An alien, or a citizen of another state, sued in a state court other than that of the' state in which he resides, is entitled, by removing the suit, to have all questions involved in it heard and disposed of by the federal court. The sole object of the constitutional and statutory provisions conferring jurisdiction upon federal courts in behalf of aliens and citizens of other states is that they may seek a trial and decision in these courts of questions which they are unwilling to submit to the judgment of the state tribunals. There are expressions in the cases of Sayles v. Insnrance 00., 2 Curt. 212, and Bushnell v. Kennedy, 9 Wall. 387, favorable to the contention for the plaintiff here, and to the effect that a party who has removed a suit from the state court cannot dismiss it in the federal court upon the ground that the state court did not have jurisdiction of the action. These expressions, however, were unnecessary to the decision of the cases, and since they were reported there have been numerous decisions of circuit courts to the contrary. Parrott v. Iwrurance 00., 5 Fed. Rep. 391; Atchwon v. M0rri8, 11 Fed. Rep. 582; Small v. Montgamery,17 Fed. Rep. 865; Hendrickson v. Railroad Co., 22 Fed. Rep. 569; Kauffmanv. Kennedy, 25 Fed: Rep. 785; Miner v. Markham, ·28 Fed. Rep. 387; Perkins v. Hendryx,40 Fed. Rep. 657; Golden v. Morning News, 42 Fed. Rep. 112. The last case was a decision of this court by Judge LACOMBE. The proposition thus decided ought not to be regarded in this court as disputable. The motion by the defendant to set aside the service of process, and dismiss the suit, is granted. The motion made by the plaintiff to remand the suit to the state court is without any foundation whatever, and is denied.
the defendant and found here had been seized and sold on execution
JONGORY 11. UNITED STATES.
11. UNITED STATllIl.
(OfrcuU Oourt, W. D. LowlBf.ana. January 5, 1891.)
REVIEW ON ApPEAL-EVIDENCE NOT PRESERVED IN RECORD-INSTRUCTIONS.
Where no evidence is ureserved in the bill of except.ions, an instruction directing a verdict for the plaintiff will not he questioned on appeal
SUIE-ERROR NOT COMPLAINED OF.
Where a defendant brings error, and the plaintiff does not complain of the judgment. though it is for less than he is entitled to, the error cannot be corrected in the circuit court. A wItness may, when testifying, refresh his recollection by the use of a memorandum made by himself. .
WITNESS-USE OF MEMORANDUM.
At Law. Error to district court. J. L. Bradford, for plaintiff in error. M. a. Elatner, U. S. Atty., for the United States.
& Miller in 8olido for the conversion of a lot of trees or timber cut off of
The United States sued Joseph J. Kingory and Perkins
the public lands by trespassers. The defendants appeared and filed a general denial, and pleaded the prescription for one year. On the trial of the case the jury found the following,verdict: "We, the jury, find as special facts that the defendants are liable for one hundred and fifty logs. averaging two hundred and fifty feet each, the lumber thereof being worth at the mills at Lake Charles, where the defendants purchased them. six dollars ($6) per thousand, and the trees standing on land being worth fifty cents each; that defendants are liable in solido to the plaintiff; that defendants did not know that the trees were cllt by trespassers on the government land." Upon this verdict a jullgment was rendered against Joseph J. Kingory fl,nd the firm of Perkins & Miller, composed of Allen J. Perkins and C. H. Miller, jointly and severally in the sum of $150, with legal interest from December 11,1885, until paid, and all costs of suit. From this judgment the defendants in the court below prosecute this writ of error. There is no assignment of errors in the record, but in the argument plaintiffs in error assign errors of court in the admission of evidence and in charging the jury, as shown by the two bills of exception allowed on the trial, to-wit: "(1) Be it remembered that on the trial of this cause the court charged the jury that the testimony of the witnesses for the government must be taken for true. since the defendants had not offered evidence to contradict it, to which charge defendants excepted; and be it further remembered that the court directed the jury to find a spl>cial verdict for the plaintiff against the defendants for one hundred and fifty logs of an average measurement of two hundred and fifty feet per log, of the value of six dollars ($6) per thousand at the mill, or fifty cents per standing trees, to which charge defendants excepted; and defendants tender their bill of exceptions in due time, and ask that same be signed and made of record. The court charged the jury that. the defendant haVing offel"ed no t(;'stimony in his behalf, and the court believing that it fully app,ears the evidence given by the plaintiff's witnesses