Whether defendant was subject to service of process at the place
where served is one of the jurisdictional questions which may be
brought directly to this Court under § 5 of the Court of Appeals
Act as amended January 20, 1897, c. 68, 29 Stat. 492.
Remington
v. Central Pacific Railroad Co., 198 U. S.
95.
Page 215 U. S. 438
After removal from the state to the federal court, the moving
party has a right to the opinion of the federal court not only on
the merits, but also as to the validity of the service of
process.
In federal jurisdiction, a foreign corporation can be served
with process under a state statute only when it is doing business
therein, and such service must be upon an agent representing the
corporation in its business.
Goldey v. Morning News Co.,
156 U. S. 518.
Notwithstanding the conformity act, § 914, Rev.Stat., decisions
and statutes of states are not conclusive upon the federal courts
in determining questions of jurisdiction.
Even if, by the law of the state, the sheriff's return is
conclusive and cannot be attacked, after removal into the federal
court, that court can determine whether a defendant was properly
served, and if, as in this case, it appears that the corporation
was not doing business in the state, the court should dismiss the
bill for want of jurisdiction by proper service.
In such case, and on such a question, it is proper for the court
to consider affidavits, it not appearing in the record that any
objection was taken thereto.
The facts, which involve the jurisdiction of the circuit court,
are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
This case comes here under § 5 of the Court of Appeals Act, as
amended January 20, 1897, 29 Stat. 492, c. 68, upon a certificate
from the Circuit Court of the United States for the Eastern
District of Missouri, presenting a question of the jurisdiction of
that court to entertain a suit brought by Benjamin T. Castleman,
defendant in error, against the Mechanical Appliance Company,
plaintiff in error, to recover for the breach of a certain alleged
contract concerning the making and delivery of massage motors.
The action was originally brought in the Circuit Court of the
City of St. Louis, in the State of Missouri, and the
Page 215 U. S. 439
Mechanical Appliance Company, a foreign corporation, then
defendant, removed the case to the Circuit Court of the United
States for the Eastern District of Missouri upon the ground of
diverse citizenship. After the case reached the United States
circuit court, the bill of exceptions shows that a motion to quash
the summons and certain affidavits were withdrawn, and a plea to
the jurisdiction was filed.
The original service of summons in the state court had been made
by the sheriff, who returned the summons as follows:
"Served this writ at the City of St. Louis, Missouri, on the
within named defendant the Mechanical Appliance Company (a
corporation), this 29th day of December, 1906, by delivering a copy
of the writ and petition furnished by the clerk to Dudley Shaw,
agent of the said defendant corporation, he being in said
defendant's usual business office and in charge thereof. The
president or other chief officer of said defendant could not be
found in the City of St. Louis at the time of service."
In the plea to the jurisdiction, in the circuit court of the
United States, the plaintiff in error set up:
"1. That it is a corporation, organized under the laws of the
State of Wisconsin; that it has never taken out a license to do
business in the State of Missouri, and that, at the time of the
alleged service of the writ of summons herein as set out in the
return of the sheriff, to-wit, 29th day of December, 1906, the
defendant did not have any agent, office, or place of business in
the City of St. Louis or in the State of Missouri."
"2. That the person upon whom service was attempted to be had by
the sheriff, and to whom a copy of the summons and petition was
delivered, to-wit, Dudley Shaw, was not and had not been for some
time prior thereto an officer, agent, or employee of this
defendant. That said Dudley Shaw was not, at the time of the
delivery of the summons herein to him by the sheriff, in charge of
defendant's usual business office, or in defendant's usual business
office in the City of St. Louis, for the reason that this defendant
had at said time, no
Page 215 U. S. 440
business office nor any other office in the City of St. Louis,
State of Missouri."
Certain affidavits are set out in the bill of exceptions, and it
is therein stated that they were filed. Two affidavits appear to
have been filed in support of the plea to the jurisdiction, and
one, by the plaintiff, in opposition thereto. In the certificate,
the learned circuit judge states:
"I hereby certify that, in this cause, the following question of
jurisdiction arose; the defendant filed a plea to the jurisdiction
of the court on the ground that it was a corporation organized
under the laws of the State of Wisconsin, that it has no office,
place of business, or agent in, and was not doing business in, the
State of Missouri at the time of the service of summons herein, and
that the person served with the process herein was not the agent of
the defendant at the time of said service. Defendant filed
affidavit in support of the plea. I overruled the plea on the
ground that the facts stated in the return of the sheriff to the
summons were conclusive on the defendant, and could not be
controverted by it. When the cause was called for trial, the same
objection was made by the defendant, and overruled for the same
reason. The question only of jurisdiction of the court is therefore
hereby certified to the Supreme Court of the United States for its
decision thereon."
It is settled that a question of this character involves the
jurisdiction of the circuit court as a federal court, and may be
brought here by writ of error under § 5 of the Court of Appeals Act
of 1891.
Remington v. Central Pacific Railroad Company,
198 U. S. 95.
It is contended by the defendant in error that the plea to the
jurisdiction did not definitely state that the corporation
defendant was not doing business in the State of Missouri at the
time of the attempted service and furthermore that the affidavits
were not shown to have been offered in evidence, although the bill
of exceptions states that the same were filed. The certificate of
the judge, which is required by statute in
Page 215 U. S. 441
order to bring the case to this Court, states that the defendant
raised, by plea to the jurisdiction, the grounds of objection that
it was a foreign corporation having no office, place of business,
or agent in, and was not doing business in, the State of Missouri
at the time of the service of summons, and that the person served
with the process was not the agent of the defendant at the time of
said service.
The certificate shows that the court did not consider the
affidavits, and overruled the plea on the sole ground that the
facts stated in the return of the sheriff to the summons were
conclusive, and could not be controverted by the defendant. It is
also stated in the certificate that, when the case was called for
trial, the same objection was made and overruled for the same
reason. In the light of this certificate and the statements of the
bill of exceptions, we think it must be regarded that the question
was fairly before the court, notwithstanding the somewhat meager
allegations of the plea in this respect, and presented the
question, which it is certified was decided, upon plea and
objections attacking the jurisdiction of the court, because the
corporation was not doing business in the State of Missouri, and
the person attempted to be served was not its agent at that
time.
In a memorandum opinion, it is indicated that the learned judge
in the court below followed a previous ruling in the same court,
and it is stated that it is the law of Missouri, as held by its
highest court, that, in a case of this kind, a return of this
character is conclusive upon the parties. But it is well settled
that, after removal from the state to the federal court, the moving
party has a right to the opinion of the federal court not only upon
the question of the merits of the case, but as to the validity of
the service of process.
Wabash Western Ry. Co. v. Brow,
164 U. S. 271,
164 U. S.
278.
It is equally well settled in the federal jurisdiction that a
foreign corporation can be served with process within the state
only when it is doing business therein, and that such service must
be upon an agent who represents the corporation
Page 215 U. S. 442
in its business. This subject underwent extensive consideration
in the case of
Goldey v. Morning News, 156 U.
S. 518, and the rule is there stated by Mr. Justice
Gray, speaking for the Court, as follows:
. . . service of mesne process from a court of a state, not made
upon the defendant or his authorized agent within the state,
although there made in some other manner recognized as valid by its
legislative acts and judicial decisions, can be allowed no validity
in the circuit court of the United States after the removal of the
case into that court, pursuant to the acts of Congress, unless the
defendant can be held, by virtue of a general appearance or
otherwise, to have waived the defect in the service, and to have
submitted himself to the jurisdiction of the court.
In view of the principles thus determined, we think the return
of the sheriff of the state court was not conclusive upon the
question of service. For when the question was raised in the
circuit court of the United States, the jurisdiction of the court
would fail if it appeared that the corporation attempted to be
served was not doing business in the State of Missouri, and the
attempted service was not upon one of its agent.
Conley v.
Mathieson Alkali Works, 190 U. S. 406;
St. Clair v. Cox, 106 U. S. 350;
Peterson v. Chicago, Rock Island & Pacific Ry. Co.,
205 U. S. 364;
Green v. C., B. & Q. Ry. Co., 205 U.
S. 530.
Defendant in error cites the case of
Smoot v. Judd, 184
Mo. 508, 83 S.W. 481, in which it was held that, where a sheriff's
return recited a personal service of process which was false, the
remedy of the unserved defendant against whom judgment by default
had been taken, in the absence of fraud on the part of the
plaintiff in the suit, was in an action on the sheriff's bond for
damages for the false return, and not by a suit to set aside the
sheriff's sale and deed made in pursuance of the default judgment.
It is to be noted in this connection that the attack upon the
service in that case was made after judgment, and not, as in the
present case, by a motion to set aside the
Page 215 U. S. 443
service of summons, or a plea to the jurisdiction over the
person. Moreover, in cases which concern the jurisdiction of the
federal courts, notwithstanding the so-called conformity act
(Revised Stat. § 914), neither the statutes of the state nor the
decisions of its courts are conclusive upon the federal courts. The
ultimate determination of such questions of jurisdiction is for
this Court alone.
Western Loan & Savings Co. v. Butte &
Boston Consolidated Mining Co., 210 U.
S. 368,
210 U. S. 369;
Mexican Central Railway Co. v. Pinkney, 149 U.
S. 194.
Defendant in error also relies upon the cases of
Walker v.
Robbins, 14 How, 584, and
Knox County v.
Harshman, 133 U. S. 152.
Neither of these cases controls the one under consideration. In
Walker v. Robbins, a bill in equity was filed to enjoin
enforcement of a judgment at law, entered upon a false return of a
marshal in the circuit court of the Mississippi district. This
Court held that a bill in equity would not lie for such purpose,
and further, that the return was not false, and, if it were, the
defendant Walker waived the want of service by pleading to the
merits of the action. It was there said by Mr. Justice Catron,
delivering the opinion of the Court:
"In cases of false returns affecting the defendant, where the
plaintiff at law is not at fault, redress can only be had in the
court of law where the record was made; and, if relief cannot be
had there, the party injured must seek his remedy against the
marshal."
The case was decided upon the grounds which we have stated, and
the language quoted and relied upon by the defendant in error is
very far from indicating that a party might not appear specially
and object to service of summons, and move to set aside the same,
and to dismiss the action upon the grounds which are involved in
the case at bar.
In
Knox County v. Harshman, a bill in equity was filed
for an injunction against the prosecution of a writ of mandamus to
enforce the levy of a certain tax against the county. The bill
alleged that neither the county court nor any of the judges thereof
had any notice of the suit until after the end of the
Page 215 U. S. 444
term at which judgment was rendered, and that no service of
summons was made upon Frank P. Hall, the county clerk, as was
stated in the marshal's return. This Court, in an opinion by Mr.
Justice Gray, held that a court of equity would not interfere with
the judgment, under the circumstances shown, and as to the
officer's return of service of copy of the summons on the clerk, if
false, no fraud having been charged or proved against the
petitioner, redress must be sought in an action at law, and not by
a bill in equity, and that, if the questions of fact could be
considered as open in the case, the proof at the hearing showed
that service had, in fact been made.
Neither of these cases involved the right of the defendant to
appear upon attempted service in an action at law, and by motion,
or plea for that purpose, raise the question of jurisdiction over
his person. The case of
Wabash Western Railway Co. v.
Brow, 164 U. S. 271, is
much closer in its analogy to the case at bar. In that case, suit
was commenced in the state court, in Michigan, against the Wabash
Western Railway Company, to recover in an action for damages. The
service of summons and copy of the declaration was made upon one
Hill, as agent of the company. The case was removed to the federal
court for the Eastern District of Michigan. The railroad company
thereupon appeared and moved to set aside the declaration and rule
to plead, upon the ground of want of jurisdiction, and filed an
affidavit showing that Hill, upon whom the service had been
attempted, was the freight agent of the Wabash Railroad Company, a
corporation which owned and operated a railroad from Detroit to the
Michigan state line, and was not an agent of the Wabash Western
Railway Company, the defendant in the suit; and at the time of the
attempted service, the defendant did not own, operate, and control
any railroad in the State of Michigan, had no place of business
therein, and was not doing business within the state. The action
was overruled by the circuit court, the objection to the
jurisdiction was renewed when the defendant filed its
Page 215 U. S. 445
plea and before trial in the case, which resulted in a verdict
and judgment in favor of Brow.
The Court of Appeals for the Sixth Circuit held that the filing
of the petition for removal, in general terms, had effected the
appearance of the Wabash Western Railway Company to the action.
This Court, in an opinion by MR. CHIEF JUSTICE FULLER, held that
the record disclosed that the corporation, at the time of the
attempted service, was neither incorporated nor doing business, nor
had any agent nor property, within the State of Michigan, and that
the individual upon whom service had been attempted was not the
agent or an officer of the corporation, and therefore no
jurisdiction was acquired over the person of the defendant by the
attempted service; and, further, that the petition for removal did
not effect an appearance in the case, consequently reversing the
judgment of the circuit court of appeals, and remanding the case to
the circuit court, with directions to grant a new trial, and to
sustain the motion to set aside the service and dismiss the
action.
The circuit court should have considered the question upon the
issues of fact raised, as to the presence of the corporation in
Missouri and the authority of the agent upon whom service had been
attempted. It is true, as suggested by the defendant in error, that
the affidavits appearing in the bill of exceptions are stated to
have been filed, and there is no definite statement that they were
offered to be read in evidence, but we think it is apparent that
they were filed for that purpose. No objection appears in the
record to the filing of the affidavits; on the other hand, it
appears that the plaintiff below also filed an affidavit. These
affidavits are made part of the record by a bill of exceptions and
we think they should have been considered upon the question of
jurisdiction.
As we have already indicated, the learned circuit court was in
error in holding that the return of the sheriff in the state court
concluded the parties, and had it considered the affidavits
exhibited in the bill of exceptions, as, in our view, it should
have done, the conclusion would have been reached that the
Page 215 U. S. 446
weight of the testimony disclosed that the defendant corporation
was not doing business in the State of Missouri at the time of the
attempted service of process, and that the person named in the
return of the sheriff was not at that time the duly authorized
agent of the defendant corporation.
Holding these views, the judgment of the Circuit Court is
reversed, and the cause remanded to that court with directions to
dismiss the case for want of jurisdiction.
Reversed.