If the circuit court of the United States, after sufficient
service on a defendant, erroneously declines to take jurisdiction
of the case or to enter judgment therein, a writ of mandamus lies
to compel it to proceed to a determination of the case, except
where the authority to issue a writ of mandamus has been taken away
by statute.
Under articles 1223 and 1224 of the Revised Statutes of Texas of
1895, an action cannot be maintained against a partnership,
consisting of citizens of other states, by service upon an agent
within the state.
The statement of the case will be found in the opinion of the
Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This is a petition for a writ of mandamus to the District Judge
of the United States for the Eastern District of Texas, holding the
circuit court of the United States for that district, to enter
judgment by default for the petitioner in an action brought by him
in that court.
The proceedings in that action, as appearing by the petition for
mandamus and by the judge's return to a rule heretofore issued by
this Court, were as follows: the petitioner, a citizen of the State
of Texas, and a resident of Galveston in the Eastern District of
Texas, brought an action in that court to recover damages in the
sum of $50,000 against Robert G. Dun, a citizen of the State of New
York, and Robert D. Douglas, a citizen of the State of New Jersey,
alleging that the defendants carried on business in that district
and throughout the United States, as an association under the name
of R. G. Dun & Company,
Page 177 U. S. 49
and praying for a summons to said R. G. Dun & Company, to be
served upon John Fowler, alleged to be a resident of Galveston and
the local agent of said R. G. Dun & Company. A summons was
issued accordingly, and the marshal returned that he had served it
upon Fowler as such local agent. The defendants having filed no
plea, answer, or demurrer in the action, the plaintiff moved for a
judgment by default. The defendants then, appearing specially for
the purpose, filed a plea to the jurisdiction of the court, because
the defendants were not and never had been a corporation, but were
private individuals, citizens of the States of New York and New
Jersey, respectively, and not of the State of Texas, and in support
of this plea filed an affidavit of Fowler to the truth of the facts
therein stated. And the court thereupon entered the following
order:
"On this day came the plaintiff, by his attorney, and moved the
court that judgment by default be entered against the defendant
herein for the want of an appearance or answer, as required by law,
and the said motion having been heard and argued before the court,
and the court being sufficiently advised, it is considered and
ordered by the court that the said motion be denied."
Two objections are made to the issue of a writ of mandamus:
1st., that if the decision of the circuit court was erroneous, the
remedy was by writ of error, and not by mandamus; 2d, that the
circuit court had no jurisdiction of the action, for want of due
service upon the defendants.
The objection to the form of remedy cannot be sustained. A writ
of mandamus indeed cannot be used to perform the office of an
appeal or writ of error to review the judicial action of an
inferior court. A final judgment of the circuit court of the United
States for the defendant upon a plea to the jurisdiction cannot,
therefore, be reviewed by writ of mandamus. But if the court, after
sufficient service on the defendant, erroneously declines to take
jurisdiction of the case or to enter judgment therein, a writ of
mandamus lies to compel it to proceed to a determination of the
case, except where the authority to issue a writ of mandamus has
been taken away by statute.
Ex Parte Schollenberger,
96 U. S. 369;
Pennsylvania Co., Petitioner, 137 U.
S. 451,
137 U. S. 453;
American Construction Co. v.
Jacksonville &c.
Page 177 U. S. 50
Railway, 148 U. S. 372,
148 U. S. 379;
In re Hohorst, 150 U. S. 653,
150 U. S. 664.
In
Goldey v. Morning News, 156 U.
S. 518, cited for the respondent, which was brought to
this Court by writ of error, the circuit court had entered a final
judgment in favor of the defendant, setting aside the summons and
relieving the defendant from appearing to answer the complaint. But
in the case now before us, that court has done no more than to
decline to enter a judgment in favor of the plaintiff. The
plaintiff could not sue out a writ of error before a final judgment
had been entered against him, and he could not compel the circuit
court to proceed to final judgment, otherwise than by a writ of
mandamus.
But the circuit court rightly held that it had no jurisdiction
to enter judgment against the defendants, because there had been no
lawful service of the summons upon them. It appears by the record,
and is not now denied by the petitioner, that the defendants were a
partnership. In the absence of local statute, no valid judgment can
be rendered against the members of a partnership without service
upon them.
D'Arcy v.
Ketchum, 11 How. 165. The Revised Statutes of Texas
of 1895 contain the following provisions:
"ART. 1223. In any suit against a foreign private or public
corporation, joint-stock company or association, or acting
corporation or association, citation or other process may be served
on the president, vice-president, secretary, or treasurer, or
general manager, or upon any local agent within this state, of such
corporation, joint-stock company, or association, or acting
corporation or association."
"ART. 1224. In suits against partners, the citation may be
served upon one of the firm, and such service shall be sufficient
to authorize a judgment against the firm and against the partner
actually served."
It is argued, in behalf of the petitioner, that the defendants
in this case were an "association" within the meaning of article
1223 of these statutes, and therefore service on their local agent
within the state was sufficient. But, upon reading that article in
connection with article 1224, which immediately follows it, it is
manifest that the words in the former section "corporation,
Page 177 U. S. 51
joint-stock company or association, or acting corporation or
association" were not intended to include partnerships, and that
the mode of service in actions against partnerships was regulated
by the latter section, which requires service in such actions to be
made upon one of the firm. As no such service had been made in the
case before us, the circuit court had no jurisdiction to entertain
the action or to render judgment against the defendants.
Writ of mandamus denied.