,;n
·FEDERAL REPORTER,
VOl,. . :EGG CASE CO.
BANK OF HELENA,
ARK.', 1'. BArhHELDER ·No.'75.
,
I, i,(Otrctltt Oourt of .Appedts; E1{]hth Circuit. . July 5, 1892.} l.1 .
in the Circuit Court ot the United States for the District . of Arkl\nsas;' Reversed.' (Jreenjleld Quarles, John' I. Moo1'e, John J. Hornor, E. O.Hornor, M. L. Stephenson, IUld J. TriebeT, for plaintiff in error. James P.Olarke, fm' defendaut in errOl'. Before CAU>WELL and SANBORN, Circuit Judges, and SHIRAB, District JUdge. CALDWELL. Circuit Judge. The rp.cord in this case is identical. save in the name of the plaintiff, ,With that in the case of People's So,'O. Bank & Trust 00. 'If. Batchelder Egg 'Case 00., 51 Fed. Rep. 130, (No. 76.) and was submitted with that case upon, a stipulation that it should abide the result in that case..The judgment afthe court below is therefore revtlrsed, and the cause .,remanded tor a new trial. '
BROOKS f1. DUN
et al.
(Oircuit Oourt, W. D. Tennessee. June a,1892.) BBRVIOB OJ' PRocBss-NoNRBSIDENT PARTNERSHIP-SERVIOE ON AGENT.
I.,'
Mill. &!;V.Oode Tenn. 558516, 8539, which authorize of process on Bny agent or clerk wllere tile corporation, company, or individual has an office or agency in any county other than that in wpich the chief officer or principal resides, does not apply to a company other than a corporation or individual residing in another state or foreign country. If such substituted process be constitutional as to citizens of Tennessee' within the territorial limits of the state, it cannot be as to citizens of another state, and such a statute violates the fourteenth amendment of the consti. tution of the United States. and the service is not due process of law. .., :;," : ' ' , - , .;.
At Law. Thisis).1n.actionofdamages, brought by the plaintiff, a merchant at Memphis, in the., circuit,court of Shelby county, Tenn., the summons running against"R. G. Dun & Co., the 'mer<iantile agency;" and the return of the sheriff'shows that it was Uexecuted on S. Patterson, manager of R. G. Dun & Co., of the in N:emphis, Tennessee, by making known to him the contents" .thereof.: By the firstoount of his ,declaration, plaintiff avers ,a cause Jl,. G; Dun & .Co. and the mercantile ,of actiplil :.agency, being a partnership association doing business in the city of Tenn.," and' by the second count he "further sues defendant R. G. Dun & Co. as partners under the style of the 'Mercantile Agency."" At the return term, defendants by attorney "move to dismiss this cause for want of jurisdiction of the persons of the defendants, and for cause of such motion they say that the service of the summons was made on one S. Patterson, instead of having been made on the defendants, all of
BROOKS tl. DUN.
139
which appears of record in this cause," and on the same day defendants" R. G. Dun & Co." filed a petition and bond in the state court for the removal of the auit to this court, and an order was subsequently made, so removing it. This petition shows" that the controversy in said suit is between citizens of different states, and that these petitioners were at the time of the commencement of this suit, and still are, citizens and residents of the state of New York, and that plaintiff, William S. Brooks, was at the time of the commencement of this suit, and still is, a citizen and resident of the state of Tennpssee." The record nowhere discloses who composed the "partnership association," or what persons are the" partners" referred to in the declaration. Upon the filing of the transcript here, defendants renewed their motion" to dismiss for want of proper service," and filed in support of it the affidavit of the said Patterson "that he is not now, and never has been, a member of the firm of R. G. Dun & Co., but is now, and was at the time this suit was instituted, an agent for said firm, in the performance of certain duties and services; that said firm of R. G. Dun & Co. never conferred on him any power or authority to l).ccept service of any sort of legal process, * * * and that he is not charged with the duty of attending to or representing them in their lawsuits, * * * all such matters being beyond the scope of the agency of this affiant." Plaintiff subsequently moved to remand the suit to the state court, which motion was overruled. This motion to dismiss, made here and in the state court) has been twice argued. John J. Dupuy and Gantt & Patterson, for plaintiff. T. B. Edgington &: Son, for defimdants. HAMMOND, District Judge. The decision of this motion involves two questions: First, whether the service by the sheriff is sufficient to give the ('ourt jurisdiction of the defendants; and, second, whether there has been such an appearance by the ·defendants as will waive any irregularity in the service if such be found to exist. If the latter qUt'stion is resolved against the defendants, it will, of course. be unnecessarv to consider the lormer. The removal here was under the nroof the late judiciary act of March 3, 1887, and apart from -the objection raised by this motion the case is properly here. No objection is made to the form in which defendants present this question for adjudication, and indeed such objection could not successfully be made) as it seems to be now well settled by all the later cases that at law it is quite immaterial whether this defense be made by motion to aside the return of the officer) or to quash the return, or to dismiss the suit for want of service or for want of jurisdiction of the court over the parties, or by special plea or answer, or by plea in abatement; and if necessary in a given case. to give effect to the intpution of the parties) the court will consider such a defense as properly prespnted though irregu. larly made. 'rhe difficulties attending the procedure in equity, under our practice, where appearances are general or special, do not arise here. Since the decision in Harkness v. Hyde, 98 U. S. 476) the federal courts)
FEDERAl,. . . REPORTER,
.vol. 51.
aJ least in' cases at law, haye not generally favoreli the doctrine of of service of process by defendant's appearance to raise objection t1.J.ereto, in whatever form; and this, notwithstanding his subsequent upon the merits of the action, after the former objection has been overruled. That was a sU,it for damages, in which summons with copy of the complaint was served by the sheriff on defendant at his res"on the Indian reservation," which the court finds was "bey.ond the' jurisdiction, legislative or judicial, of the government of Idaho." Defendant moved to dismiss the action on this ground in the clistrict court of the territory, which motion being overruled, he def!Juded, on the merits, and the case was taken to the United States sucourUor a review of this ruling. Justice FIELD, in delivering the opinion of the court, says: ,','The service was an unlawful act of the sheriff. The court below should on it!! attention being caned to the fact that it therefore have set it. was the on the. reservation. The motion was to dismiss the 'i!ctlOn; but it was argued as a motion to set aside the service, and treat'it as having only that extent. * * * The right of the defendant to insist upon the objection to the illegality of the service was not waived by the special appearance of counsel for him to move the dismissal of the action on that ground, Of what we consider as intended, that the service be nor when that motion is overruled by their answering for bim to the merits of the Illegality in a proceeding by Which jurisdiction is be obtained is in no ca.se waived by the appearance of the defendant for the purpose of calling the attention of the cOllrt tosllch irregularity. * * * It is only when he pleads to the merits in the first instance. without insistingupon the illegality, that the objection is deemed to be waived."
we
But it is insisted with great earnestness that the proceeding taken by the defendants to the case from the state court by presenting their petition .and filing their bond there,al1d procuring the action of the state court and following the case here, was an appearance indethe motion made by. them there and here, and waived any irregularity in the service. But ou. this precise question the decisions are substantially unifonp. the other way. It is plain that such a rule would be a ,limitation upon the jurisdiction of this court, and deprive the party of the right to have heard here oue of the most im J.lortant qu,estlons in. his .case., There might be cases where the appearance to remove would obviate the service of process, possibly, but notin one where the territorial domination or dominion over the defendant is denied; v. Insurance 00., 5 Fed. Rep. 391, 392; Blair v. Turtle, Id.394, 398; Atchisrm v.Morris, 11 Fed. Rep. 582,585; Small v. Montg.fYmery, 17 :Fed. Rep. 865, 866; .Hendrickson v. Railway Co., 22 Fed. Rep. (56.9, 570; Miner v. Markham,28 Fed. Rep. 387, 395; Hankinson v.f.age, .31 Feci. Rep. 184;; Pf/I'Mrns v. Hendryx, 40 Fed. Rep. 657; Clews hon Co., 44 Fed. Rep. 31, 32; Forrestv. Railroad CkJ., 47 Fed. Rep·.
1,2.'
.
, brings us. to the main questiol), whether partners who are nonr·_sidentsof the state, and not iound within its limits, but who are doing bll:l>incssin the state and have an office and a.gent thereiu, can be
BROOKS
v.
DUN.
141
brought into court as defendants in a simple action for damages by 8 service upon their resident agent of process, whereby the sheriff is commanded to summon them. In this suit there has been no attachment or other proceeding to subject their property in the state, either real or personal, to the security or satisfaction of the damages sued for; and, indeed, there is nothing in this record showing either directly or by implication that these delEmdants have any property whatever in the state. The suit is therefore in no sense, either in form or effect, an action in rem, and the questions which often arise in such cases are not presented here. For the plaintiff, it is mged that the statutes of the state authorize such a service of original or leading process as was made here, and that the court thereby has acquired jurisdiction oBhe case and over the defendants, while their contention. is that the statute so relied upon applies only to corporations, and that, if it be construed to include individuals, it is to that extent, at least, unconstitutional, because it would deprive them of their property, "without due process of law," (Const. U. S. amend. 5,) and not ac.cording to" the law of the land," (Const. Tenn. art. 1, § 8.) The following is the provision of the Tennessee Code relied upon to support the service made in this case: "When a corporation. company. or individual has an officer or agency Or resident director in any county other than that in which the chief officer or principal resides, the service of process may be made on any agent or clerk employed therein, in all actions brought in such county against said company. grOWing out of the business of or connected with said company or princi. pal'S business." Thomp. & S. Code, § 2834aj Mill. & V. Code, §§ 3516. 3539. The words "in such county," last quoted, do not appelil' in the re"vision of Thompson & Steger, but do in that of Milliken & Vertrees. The entire provision is most inartificially drawn, as will be seen by a careful reading of it, and the word" officer" first occurring in the section has been construed to mean "office." Toppins v. Railroad Co., 5 Lea, 600; Railroad Co. v. Walker,9 Lea, 475. Thefirstact of the legis1ature of the state on the subject of service of process upon corporations was that passed January 8, 1846, c. 55, entitled "An act concerning corporations," and it authorized service" on the president or other head of a corporation, or in his absence on the cashier, treasurer, or secretary, or in the absence of such officers on any director of such corporation." 'rhomp. & S.C6de Tenn. § 2831; Mill & V. Code, § 3536. Anact supplemental to this was passed January 23, 1850, c. 136, which provided " that, in addition to the corporate officers named, * * * service of leading process on the chief agent of the corporation residing at the time of service in the county where the action is brought shall be deemed a sufficient service," etc., provided the officers named in the original act do not reside in the comity. Thomp. & S. Code Tenn. §§ 2832, 2833; Mill. & V. Code, §§ 3537, 3538. These two acts were subsequently amended by the act of February 21, 1852, c. 136, by allowing sen-ice upon the agent whether the president or other officers named in the
FEDERAL .J;mPOR'rER,
(lriginal the or not; and made J(l "as well to fQreign as. to doits lnestic corporation/:l,'11 .This. theref6re,.]eaves no doubt that, in the codification of our state laws, both tbe.codifiers and the legislature intended the Code provisions equally to foreignand.;domestic corporations; and this qqt of 1852 is the original basis for such provisions, aDd gives no occasi<;>n for construction to ascertain their meaning. was by the legislature in 1858, The first. Code of llnd took effect on May 1st of that year. Its provisions regulating" process against were embraced in sections 2831-2834, the latter sectionbeipg llsfollows: .. When !l. corporation, cOrnp:lny, or individual has an office or agency in the county other than in which the principal rf'sidl's, the service of process mllybe mudeon any agellt or clerk employed therein, in all actions growing out of or connpcted with the business of the office or agency." . This provision of the Code does not seem to have beenfaken from any pteviousl;\ct, but first appears in the old Code as one of the statutes of qur smte, havillg been originlllly passed in that form. By nn act passed March 19, 1860, c. 89, entitled" An act to amend sections 2831,2832, 2833, and 2834 of the Code," the provision under consideration became the law in its present form, as first above quoted. Taking this legislaU:ob together, and it is apparl3nt, notwithstanding the words used in sec2834a, & S. Code; and section 3539, Mill. & V. Cwe,thatthe intention oUhe legislature was simply to provide a method of service of process upon corporations subject to suit in the courts of the state. Its provisions ha\'e been the subject of consideration by the supreme court of the !,tate, both in the case of foreign and domestic as weU as municipal Lut counsel have cited.no case, nor have I been able to find one, where a service has been attempted, Ewen, un-, ,derthe provililions of thili legislation, upon individuals or partners or joint through an agent. It is only where a corporation is to be brought ill that the service thus provided lor has been had upon an .agent, as the cases all show. Toppins v. Railroad Co., supra; Railroad Co. v. Wal,ker, sup'ra. The languageof the sections, original and amended, so far 8S it may relate, in any view, toa "company" or" individual" not "8 rcorporati<;>D," is seemingly confined to "a company" or "individual" in Tennessee; Jor the COD,Jpany or individual must have an "Offi<il6" or in" Ilnycountyother thlln that in which the I principal resides. Evidently, this implies that the" prinorindivhlual, resides in sqme county of the state, .aQ9it does not refer residing: in some county in anO,ther sblte·or·foreigh country. As already indicllted, the legislation of state shows that the!ile provisions for serving domestic corporations, as they stood, by an express act for that purpose, thought of course .to he necessary, Elxtenced to foreign" corporations," (Act .Feb. c. 136,) butthat has them to "com.panies '.' or The word." cprporation," therefore, used by the codi/iers, interpreted by the legislation were codi(ying t means
143
or domestic corporation; but it does' not at all follow that the' addendu:in. they made to the then existing legislation as to " corporations," by including "companies" or ·· individuals" along with them, include nonresidents or foreigners. Service of process upon" companies" or "individuals "can be made without legislation upon the persons, but service on "corporations" must be by legislation authorized and regulated, and we must not cpnfuse these separate purposes of the Code,-one to authorize and service of process on c6rporations, and the other, at the very most that can be claimed for it, a very limited sU,bstituted process for companies and individuals; tha.t is to say, a service not personal in the sense of the common or general law governing the service of process on individuals, but something else than this in place of it, as where some statutes authorize service on a wife or other person residing at the domicile of the defendant, or by nailing the process to the door, or the like. It is my opinion that the substituted process so provided by this act for" companies" and "individuals" was not intended for any nonresident or foreign "company" or" individual" not" a corporation," whatever may be said of it. But if this provision of the Tennessee Code ought to be so construed as to authorize a service of process for nonresident partners, in a case like this, upon their resident agent, withput any attachment of or proceeding against their propertY,or if such construction had been given to it by the supreme court of the state, this court would not necessarily be bound to follow it, or to so adjudge,aB its constitutionality would still be open to consideration here. Since the leading case of Pennoyer v. Neff, 95 U. S. 714, (decided by the supreme court of the United States in 1877,) it seems to be well settled that a personal judgment agaipst a nonresident in a suit where no service was had on him in the state, and ,he has not appeared in the suit, is without any validity. The facta in that case were, in brief; these: Mitchell sued Neff, a nonresident ,of Oregon, in a court of that state, upon an account, and service was had by publication aecording to the provisions of the Oregon Code. Neff was not served with proceSS, and did not appear. He owned realty in that state, but it was not attached. Judgment by default went against him, his real estate was sold tinder execution issued upon the judgment, and Pennoyer became the purchaser. In ejectment by Neff against Pennoyer the latter's title depended wholly npon the regularity of the proceedings in the suit of Mitchell against Neff, which was adjudicated in plaintiff's favor in the court below, and Pennoyer sued out a writ of error to the supreme court, which .affirmed the judgment on the broad ground that, while the were regular under the Code of the state in, the suit in which the original judgment was obtained against Neff, the judgment was invalid because" rendered in one state in an action upon a simple contmct against the resident of another without service of process upon him, or'his appearance therein." l1r; Justice FIELD, speaking for the, court,!in reply to the argument that such judgments are valid within.:the state where rendered, says:
144
FEDERAl, REl?9RTER,
vol. 51.
"Be that as It may,\he 'C!ourts of the.United States ar& not required to give e#ecttQ judgmentso( this when any right is claimed under them. Whilst they are not foreIgn tribunals in their relations to the slate court·s, they are tribunals of a different sovereignty, exercising a distinct and indepetJdent jurisdiction,and are bound to give to the jUdgments of the state courtll bnly the same faith and credit which the courts of another state are bOl!,nd to give to tbem'" And in defining in such connection the words "due process of law," oQCurring in the amendments to the federal constitution, the opinion uses this language: '" Whatever difficultimay be experienced in giving to those terms a definition which will embrace every permissible exertion of po\ver affecting private rights, and 'exclude such as is forbidden, there can be no doubt of their meaning Whel1'applied tOijudicial proceedings. They then mean a course of legal proceedingS accordip,g to those rules and principles which have been established in our system of jurisprudence for the pr,otection and enforcement of private rights.·. To give any yalidity, there must be a tribunal compatent byits constituUon-that is, by the law of itscreation-to pass upon thesubject·matter of the suitj and, if that involves merely a determination ot tbepersonal liability of the defendant, he must be brought within its jUrisdiction by service of process within the state, or his voluntary appear. ance." In Webster v. Reid, 11 How. 437, (cited in the above case,) thejudg. mentsuntler consideration wete had in suits against" the owners of halfbreed hulas lying in Lee' county," without naming them, and proof was offered below "that no service had evefbeen made upon any person in the suits in which thejudgments were rendered," but notice by publication in a'newspaper wltsal1thorized, by act of the Iowa legislature. These suits Were simply in personam against the owners of the land.
Per curiam:
"Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property, has not been attached. In "bis case, there was no personal notice, nor an attachment or other against:the Illnd. until after the judgments. The judgments, tberefore,are nullities, and do not authorize the executions on which the land was '.
D'ArfY!} ". Ketchum, H How. 165, is also cited approvingly in Pennoyer v. Neff, supra. In that case, D'Arcy and Gossip were partners doing businessdn New York, and were there sued on a bill of exchange. Gossip was ,served with process, ,but D'Arcy, who was a citizen and residant of Louisiana, WaStl0tj Gossip first pleaded general issue, but at the trial made default, and judgment was rendered against both. A statute of New 'York provided ,tha't "where joint debtors are sued, and one is brought into court on process" he shall answer the plaintiff; and, if judgment shBll.passforplaintifJ, he shall have judgment and execution not only against the party brought into court, but also against other joint debtotsnamed in the original process, in the same, manner as if they hadaJ,l bl3 entaken and by virtue of sueh process." Upon this judgment, D'Arey wassued in Louisiana in the United States
:BROOKS V. DUN.
145
circuit court. and pleaded "that the judgment sued upon is not one upon which suit can be brought against the defendant in this court." This plea was overruled in the circuit court, but on writ of error was sustained by the supreme court, CA'l'RON, J., delivering the opinion of the conrt. And in Har1r:ness v. Hyde, BUpra, the facts of which have been stated, the court, in affirming the decision in Pennoyer v. Neff. Btlpra, uses this language: "There can be no jurisdiction in a court of a territory to render a personal judgment,against anyone upon service made outside its limits. Personal service wltbinits limits, or tbe appearance of the defendant, is essential in such cases. It is only where property of a nonresident or of an abo sentdefendimt is brollght under its control, or where his assent to a different mode of service is given in advance. that it has jlirisdiction to inquire into bispersonalliabllities or obligations without personal service of process upon hini; or' his voluntary appearance in the action."
The case of Insurance Co. v. Bangs, 103 U. S. 435, commenced in the state court of J\;Iinnesota, and removed to the federal court, was an action on ,two policies of life insurance. While pending there the insurance company filed a bill in equity in the United States circuit court in Mich· igan against the plaintiff, a minor son of the insured, to whom cieswere .payable, (joining his mother as a defendant therein,) to clitlCel the The chancery subprena was never personally served on the defendant,but was served on his general guardian after the ward had left Michigan and gone to Minnesota to reside. The guardian not making any appearance for his ward, a guardian ad litem was appointed, who defended. The ward possessed no property in Michigan. A dt,· cree was entered there, canceling the policies for fraud in their procurementjand defendants, the son and mother, were. perpetually enjoined from proceeding to collect the policies in any action at law upon them. In the Minnesota suit, this decree of the Michigan court was set up in its answer by the company. Plaintiff demurred, his demurrer was sustained below, and the judgment affirmed by the supreme court. The statnte of Michigan required a general guardian to "appear for and represent his ward in all legal suits and proceedings, unless when another person is appointed for the purpose as guardian or next friend." But Mr. Justice FIELD, in the opinion of the court, says that this statute "does not change the necessity of service of process upon the defendants in a case before a court of the United States where a personal contract alone is involved. It may be otherwise in the state courts. It may be that by their practice the service of process upon the general guardiM, or his appearance without service, is deemed sufficient for their jurisdiction.We believe that in some states such is the fact, but the state law cannot determinefor the federal courts what shall be deemed sufficient service of process or sufficient appflarance of parties. Substituted service by Pllblication against nonresident or absent parties, ll110wed in some purely penoonal actions, is not permitted in the federal courts. .Su()h servioe can only be resorted to when some claim or lien upon real or personal property ili$ sought to be enforced, and the decision v.51F.no.5-10
FEDERAV:RBPORTElt,
therl. only affe6tprdpetty of the party within the district. InPoiMviBowler, 107 U; S.'529, 545,2 Sup. publicationLaddressed to "the utikfi'o'WH ownefsand holders of bonds and coupone issued by the town 01 a'ptoceeding:in Illinois, purely in personam, and, it was held to'be J abs6lutelyvoidas to nonresidents of the state upon whom there was no service, and by whom there was no appearance; the court citing Cboper :vs Rey'1J,9ld8, 10 .Wall.; 308; Penn oyer v. Neff, 8upra; Brooklyn v. In.-urancelG'o.,'99 U. S. 362; If}m,pirev.Darlington, 101 U. S. 87; and St. 106 U. S. 353,1 Sup.: Ct.' Rep. 354. Thejudgment in in 110 U. S. 151; 3 Sup.' Ct. Rep. 586, waa in an in equity to relnOVe upon title to 'the only serv'ii:e was bypublicationiJ;l the form authorized by the Texas statutes against nonresidents, and the decree was in per8Qnamm,erely. Held, in II; ,suit upon it in the federal court, that the j udgment cOurtsaying: "The ijudgmerlt. would be allowed no force In the. courts of any other state; and it is:ofnogreater foree/as against" citizen of another state, In a court of the United States. tbougbi'-held within the state in whichtbe judgment was lCendered. , : JirI1el'l'ltm v·.'Alder8on"U9' U. S. 185" ,7 Sup; Ot; Rep. 165, was an action of trespass to try titlelto 'and recover possession of realty in Texas. Plaintiffs cla.imed under sheriff's deed made on' sale under anexecution. The defendant in the original judgment was a nonresident. He was not served with process, made noappearance,but was cited by publication., The plaintiffs then recovered an undivided half of the land in question, and a judgment for costs against defendant, on which the exehalf of.the land was cution was issueQ,andt-o satisfy whioh i sold. Bythe,.court: : . l "The jUdgtnent;so faralithe costs are concerned; must therefore be treated M',a: judgment!in pe1'80nam'; and. for the reason stated, it was without any upon tpe defendant, anll the execution issued upon it did the sale .3qd, of course. not the deed of the sheriff." not I' But as to the remaining portion of the judgment the court says: "4Tbe.serviceOf citationby,:publicatiQnmay suffiel" for the exercise of the ju:rlsdletlon of, the court ,()\'l/U1 "the property so far as to try the right to its pos:or tQ qefireeJts :.; So, in Hulingv. Improvement 0>.,130 U.S. 559; 9 Sup. Ct. Rep. 603, where the proceeding WIls'iter' the condemnation of land for' a railroad, und publicMioDwRs made'utlder the stattite of Kansas; it was held to be 'due process of law, so·:farasit aflected·the real estate of a nonresident :of the state withib which the .property lies. And in an action to qUIet title to land in: Nebraska; its possession, it was decided in Arndt v. Griggs,1 34 U. S. 816,10 ' Sup..Ot.Rep. 557, that service bypuhlicatIon tt'1 'nonresidents under' the state: stll.fute Was au fficierit. Mellen v. Iron W01'kB, 131',U.S. 352,'9 Sup. Ct,:Rep. 781,and'thecasesof Peil1I.oyerv. Neff, $Upra, Hart v. Swn:SOtn,'llUpTU, and 'Huling v. Improvement Co. I in support of the decision; i .The Nebraska statute here was
Re\", Ct.
a
1
very similar to the act of congress on the same Section 8,c. 137, approved March 3, 1875, (18 St. p. 470.) The latest decision of the supreme court on this subject is in Grover, etc., (h. v. RadclijJe, 137 U. S. 287, 11 Sup. Ct. Rep. 92, (decided at the October term, 1890.) The facts are as follows: James Benge, a citizen of Pennsylvania, and John Benge, a citizen of Maryland, executed a bond to the plaintiff company, in which they authorized" any attorney of any court of record.in the state of New York, or any other state, to confess judgment" against them on the bond in case of breach of its conditions. A prothonotary of a court in Pennsylvania entered judgment upon the bond without the filing of any declaration or issuance of process, or any appearance by the makers; the statute of that state making it his duty to do this "on the application of any person being the original holder of a nOLe, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law or other person to confess judgment." The plaintiff company sued on this judgment in Mar)Tland. Judgment was rendered against it by the courts of that state, and the case was taken by writ of error to the supreme court of the United States, which affirwed the judgment below; FULLER, C. J., saying: "It is settl<>d ... ... ... that a personal judgment is without validity if rendered by a state court in an action IIpon a money demand against a non. residtmt of the l;tate, upon whom no pertlonal of within tue state was madE', and who did not appear." And again: . "John Benge was a citizen of Maryland when he E'xpcuted this ohllllation. The sUhject-matt!'r of the su,t IIgainst him in Pennsylvania was merely the determination of his personal liability, and it was necessary to the validity of the jUdgment, at !'l,;!'where, that it should appear from the record that he had b!'en brought within the jurisdiction of the Pennsylvania court hy servic!' of proc!'ss. or his vul untary appearance, or that he had in some manner authorized the proceediug. II
The court holding that the authority given by the bond to an attorney of a court of record to confess judgment did not authorize the prothonotary of court to do so. See, also, Hall v. Lanning, 91 U. ;:;. 160, 168; Mohr v. Mnnierre, 101 U. S. 417,422; Smithv. Woolfolk, 115 U. 8.143, 149,5 Sup. Ct. Rep. 1177; Renaud v. Abbott, 116 U. S. 277, 6 Sup. Ct. Rep. 1194, where this question is discussed. Since the case of Penn oyer v. Neff, ifW[YI'a, the q'Jestion there decioed has been often before the circuit courts, and in various forms, and their deeisiolls have been uniformlY adverse to the validity Of service in such casE's as this without personai service of the in the state where the suit is brought, or his voluntary appearance therein. Bunnell v. BunneU, 25 Fed. Rep. 214; U. S. v. American Bell Tel. 00.,29 Fed. Rep. 17,31,32; Clark v. Hammett, 27 Fed. Rep. 339; Hankinson v. Page, 31 Fed. Rep. 184; Perkins v. Hendryx, 40 Fed. Rep. 657. And iden where personal service was actually made on the nonresident defendant uta time exempted him from or place or ..l.1nder such circumstances
as
FEDERAL REPORTER,
Bimilar:rulings have been made,' hs where ::;etvice was made another in which the suit was brought, (Parrott v, Insurance Co., state Wilson v. 36 Fed. Rep. 154,) or upon a nonresident while upon compulsory attendance UPOrl a court of the state, as defendant in a 'criminal prosecution, (Blair v. Turtle, 5 Fed. Rep. 394,) or as a witness, (Atchison v. Morris, 11 Fed. Rep. 582; Small v. Montgornery, 17 Fed. Rep. 865,) or was temporarily in the state on his way to the national capitol, as a member. of congresS. The authorities are well summarized in a late work on judgments. Black, Judgm. §§ 220-222, 906, 997. But it is Ilot proper to dismiss this suit because of this void service. The most thrtfshould be done is to set aside and vacate the service. The plaintiff has aright to sue anywhere he may choose. Whether he can get service of process may be another matter. If he does, he may go OIl. If he does not. he may dismiss until he can find the defendant within the jurisdiction. There is no penalty attached to defective service that the suit shall be dismissed. It is enough to'set it aside. Whether the defendant, who may, as we have seen, specially appear to vacate a void service, may also specially appear to move to dismiss for want of prosecution, or because the plaintiff has been unable to find him within the jurisdiction, or because it is shown that he is a nonresident, need not be nowdecid.ed. Possibly he cannot. If he specially appear and move to dismiss when he should only have moved to set aside the proper service, the court will not treat him as waiving service by his improper motion, but will vacate the service. That was precisely the case in HarkneB8 v. Hyde, Bupra, and the supreme court went no further than to order that. the service be set aside. The Jsame order will be entered in this case, and the three other cases just like it, depending upon the same illegal service. So ordered.
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(Circuit Court, D. Indiana. June 28. 1892.) 1. CONTRACTS-CONSTRUCTION-JoINT AND SEVERAL.
9.
Plaintiff entered into a written contract Whereby it agreed to erect and equip a bntter and cheese factory for $4,500; the party of the second part stipnlating that "we, undersigned subscribers hereto, agree to pay the above amount for said butter and cheese factory When completed.'" The subscribers also agreed to incorporatewith a capital $tockofnot less tban ,$4,500, the shares "to be issued to the subscribers hereto in propol'tion to their paid-up interests herein; and itis further agreed that each stookholder shall be liable only for the amount 'subscribed by him. "'1'0 this was attachEld a heading for, subscribers, thus: "Names of Subscrib:ers. No. of Sbares. 4mount of Stock ,after Incorporation." Sixty-one persons severally subscribed this contl'act, for amounts val'yingfrom $25 to $100. Held, that, notwitbstanding thl'luseof the wonfs, "We agl'ee to pay." the contrac.t was several. and not joint.. Dwvi8 v. Sha!er,50 Fed. Rep. 764. disapproved. . '.
SAME.
The prOVision ,that "each stockholder shall be 'liable only for the amount subhim, that the contract several, and it cannot be regarded as merely reg'ulating the rights of the stockholders among themselves.