Where jurisdiction of the circuit court involves only the
questions of fact whether the defendant corporation was doing
business within the jurisdiction and the person served was its
agent, those questions can be brought by direct appeal to this
Court under § 5 of the Circuit Court of Appeals Act of 1891.
The decree of dismissal can take the place of a certificate if
the record is in such form as to show that the case was dismissed
for want of jurisdiction, and for that reason only.
Excelsior
Water Power Co. v. Pacific Bridge Co., 185 U.
S. 282.
While the jurisdictional certificate must be issued during the
term at which the question is decided, if the certificate is
supplied by a decree in due form showing all that is required by
the certificate, the appeal may be perfected within two year, as
are other appeals.
Excelsior Water Power Co. v. Pacific Bridge
Co., 185 U. S. 282.
In this case, the record shows that there was but one final
order or decree which at the same time quashed the service of the
summons and dismissed the case for want of jurisdiction, and an
appeal from such a decree brings to this Court the question of
jurisdiction.
A foreign corporation, in order to be subject to the
jurisdiction of a court, must be doing business within the the
court's jurisdiction, and the service must be made there upon some
duly authorized officer or agent.
In this case, as it appears from the evidence in the record that
the defendant corporation was doing business within the state and
that the person served was its agent at the time of service, the
circuit court had jurisdiction.
The facts, which involve the jurisdiction of the Circuit Court
of the Western District of Kentucky over the person of the
defendant by reason of service on defendant's agent and whether
defendant was doing business in that district, are stated in the
opinion.
Page 224 U. S. 497
MR. JUSTICE DAY delivered the opinion of the Court.
In this case, a suit was brought by the Herndon-Carter Company,
a corporation of the State of Kentucky, against James N. Norris,
Son & Company, a corporation of the State of New York. The bill
of complaint sought an accounting and settlement of transactions
between the parties growing out of shipments of poultry from the
Kentucky corporation to the New York Corporation, sold by the
latter on commission. A subpoena was issued and served on March 10,
1911, upon James N. Norris, Son & Company by delivering a copy
to W. J. Adams, as manager and chief agent, and the highest officer
of the company in the district. The defendant company entered a
special appearance and filed an objection and plea to the
jurisdiction setting up that it was a corporation of the State of
New York; that, since December, 1904, it had not had any place of
business in the State of Kentucky, and had not conducted any
business in that state; that, since that time, it had had no agent
in the State of Kentucky, and that W. J. Adams was not at the time
of the service of the writ the manager and officer or agent of the
defendant. The defendant averred further that, for a little more
than two years before the first of January, 1905, Adams was
employed by it, and acted as its agent in Kentucky in the purchase
and shipment of poultry and produce, but that, at the end of the
year 1904, he severed his connection with defendant, and ceased to
be its agent for any purpose whatever; that, on January 1, 1905,
Adams, James N. Norris, and William H. Norris formed a partnership
in which Adams had an one-half interest and James N.
Page 224 U. S. 498
Norris and William H. Norris each a one-quarter interest, and
that, since the first of January, 1905, the partnership had
conducted the business of buyers and shippers of poultry, butter,
and eggs in Louisville and other parts of Kentucky.
Upon testimony to be hereinafter referred to, the circuit court
heard the parties upon the issues made by the plea to the
jurisdiction and replication thereto, and concluded that Adams was
not the agent at the time of the attempted service upon him as
such, and that James N. Norris, Son & Company was not then
doing business in the State of Kentucky.
The case is brought directly here under § 5 of the Circuit Court
of Appeals Act of March 3, 1891, 26 Stat. 827, c. 517. It is
evident from a statement of the question made that it only involves
issues of fact as to whether the defendant company was doing
business in Kentucky, and whether Adams was its agent at the time
of the attempted service. It is well settled that a question of
this character may be brought to this Court by direct appeal under
the Circuit Court of Appeals Act.
Remington v. Central Pacific
R. Co.,198 U.S.
95;
Commercial Mutual Accident Co. v. Davis,
213 U. S. 245,
213 U. S. 256;
Mechanical Appliance Co. v. Castleman, 215 U.
S. 437.
The appellee objects that the statutory requirement that the
question of jurisdiction only shall be certified to this Court was
not complied with, and therefore the case should be dismissed. The
record, however, discloses that the case was dismissed for the want
of jurisdiction, and for that reason only. Where the decree of
dismissal is in such form, it is sufficient to take the place of a
certificate, within the requirements of the act.
Excelsior
Wooden Pipe Co. v. Pacific Bridge Co., 185 U.
S. 282.
It is further objected that, if the decree could be held to take
the place of a certificate, the present appeal was not taken at the
term during which the case was decided and
Page 224 U. S. 499
the decree of dismissal entered. The record shows that an appeal
was taken to the circuit court of appeals from the decree of
dismissal entered at the March term, 1911, of the circuit court. It
was there dismissed, and at the October term, 1911, another appeal
was allowed from the circuit court directly to this Court. This
Court has held that the jurisdictional certificate must be issued
during the term at which the question is decided.
Colvin v.
Jacksonville, 158 U. S. 456;
The Bayonne, 159 U. S. 687. It
has also been held that the certificate being supplied by a decree
in due form, showing dismissal for want of jurisdiction only, the
appeal may be perfected subsequently, within two years, as are
other appeals.
Excelsior W.P. Co. v. Pacific Bridge Co.
supra.
The appellee further contends that the record shows two decrees
or orders -- an order quashing the service of summons and,
separately, a decree of dismissal for want of jurisdiction -- and
this is said to be shown because the opinion of the court, sent up
with the record, states the decision upon the question of quashing
service of summons to have been first made. An inspection of the
record shows but one final order or decree, which at the same time,
quashes the service of summons and dismisses the case for want of
jurisdiction, and that is the decree appealed from, and which
brings to this Court the question of jurisdiction of the
defendant.
It has frequently been held in this Court that a foreign
corporation, in order to be subject to the jurisdiction of a court,
must be doing business within the State of the court's
jurisdiction, and service must there be made upon some duly
authorized officer or agent.
St. Clair v. Cox,
106 U. S. 350;
Goldey v. Morning News, 156 U. S. 518;
Peterson v. Chicago, Rock Island & Pac. Ry.,
205 U. S. 364. We
are therefore brought to review the correctness of the decision of
the circuit court holding that James N. Norris, Son & Company
was not doing business in the
Page 224 U. S. 500
State of Kentucky, and that Adams was not its agent at the time
of the attempted service.
The substance of the plea to the jurisdiction, already
indicated, is that, while Adams had previously been the agent of
the defendant, he ceased to be such on the 1st of January, 1905,
when the copartnership was formed between James N. Norris and
William H. Norris, officers of the defendant company, and Adams,
and that thereafter he ceased to represent the corporation in
Kentucky, and it ceased to do business in that state. To support
this plea, the defendant offered the affidavits of James N. Norris
and William H. Norris to the effect that, after January 1, 1905,
the corporation did no business in Kentucky, and that the
partnership then formed thereafter carried on the business in that
state under the name of James N. Norris, Son & Company. The
testimony of the bookkeeper was taken. She testified that she had
been in the employ of James N. Norris, Son & Company for some
time prior to January 1, 1905, and that, at that date, a change was
made owing to the formation of the partnership. She further
testified that the profits were divided on the books, but no
settlements were made while she was with the firm; that she drew no
checks for the distribution of the profits, and that there was no
such distribution while she was with the firm, which was until
December, 1908; that the books did not show the individual accounts
of the various members of the firm; that Mr. Adams had an
individual account, but she, the bookkeeper, did not keep it, Mr.
Adams keeping it himself; that Mr. Adams was paid a salary, and
that statements were sent to New York, giving the condition of the
business. Mr. Adams was called as a witness, and testified that he
worked for the New York corporation prior to January 1, 1905, when
the partnership was formed, and that, since that time, he had no
connection with the New York company in any way, and was not, on
the ninth of
Page 224 U. S. 501
March, 1911, its agent. Upon cross-examination, he testified
that, after January 1, 1905, and until the date of his examination
as a witness, his relations to the house of James N. Norris, Son
& Company had been the same, and that his relations to the New
York corporation had not changed in any way since February,
1905.
To meet this testimony, the complainant offered testimony
tending to show that James N. Norris, Son & Company was sued in
the Jefferson Circuit Court of Kentucky as a corporation of the
State of New Jersey. The corporation appeared and answered that it
was organized under the laws of New York, admitted that it executed
and delivered a certain letter attached to plaintiff's petition,
and marked "Exhibit A," dated June 25, 1907, the letter being
written from Louisville, Kentucky, signed James N. Norris, Son
& Company, by W. J. Adams, manager. In that action, an
affidavit for a continuance was filed on April 17, 1908, in which
Adams deposed that the defendant, James N. Norris, Son &
Company, was a corporation of New York, and that deponent was the
manager of its Louisville office. On April 23, 1908, an amended
answer was filed, which Adams verified, making oath that he was the
local manager of James N. Norris, Son & Company. In the course
of the action, defendant took and filed a deposition in which the
witness testified that he was the manager of James N. Norris, Son
& Company at Bryan, Ohio; that, in 1907, he lived in
Louisville, Kentucky, and that Adams was then the manager of the
Louisville district.
In another suit against James N. Norris, Son & Company,
Inc., an answer was file by W. J. Adams on December 12, 1905, and
in verifying which Adams made oath that he was then, and at the
time mentioned in the answer had been, the agent of the defendant
in Kentucky, and had sole charge of its business in Jefferson
County.
In an action brought by the corporation in a magistrate's
Page 224 U. S. 502
court in Kentucky, certain dray tickets on a printed form were
introduced in evidence which showed them to be the tickets of James
N. Norris, Son & Company, 135 E. Jefferson Street, Louisville,
Kentucky, and that J. N. Norris was president, W. H. Norris,
vice-president and treasurer, and W. J. Adams, manager, the tickets
being dated November 20, 1908, and January 1 and 4, 1909.
Letters were introduced in evidence in which the defendant
company referred the plaintiff company to Mr. Adams for a
settlement of differences. On July 7, 1909, the defendant company
wrote to the plaintiff company as follows:
"The Herndon-Carter Company, Louisville, Ky."
"Gentlemen: I am just in receipt of your several letters in
which you call attention to the unpleasantness you are having with
our house in Louisville."
"Now I would like to make myself plain in this matter. As I have
always stated to you and everyone else, there is never any good in
fighting, but, on the contrary, lots of money lost and harm done.
Our Mr. Adams, who runs our house in Louisville, has a certain
interest in the profits, and it would be pretty hard for me to say
that he shouldn't do this or that which, in his judgment, curtails
his profits."
Examining and considering the evidence tending to show that
Adams, after the formation of the alleged partnership on January 1,
1905, continued to represent the defendant company in Louisville,
we are forced to the conclusion that the decided preponderance of
the evidence supports the complainant's contention that Adams was
the authorized managing agent of the defendant company in Kentucky,
and doing business for it in that state.
The learned judge of the circuit court reached the contrary
conclusion, and his opinion is justly entitled to great weight; but
it seems to proceed upon the theory that the testimony did not show
the continuance of the
Page 224 U. S. 503
agency down to March 10, 1911, the time of the service of the
subpoena. We think the testimony clearly shows that the relation of
Adams to the defendant company was the same at that time as it had
been when the various transactions, to which we have referred, were
taking place in the years 1905 and the following. There could
hardly be stronger testimony than the defendant's own letter of
July 7, 1909, in which it is distinctly stated that "Mr. Adams, who
runs our house in Louisville, has a certain interest in the
profits," etc.
Reaching this conclusion, we are constrained to hold that the
court below erred in quashing the return to the subpoena and in
dismissing the case, and therefore the judgment must be reversed
and the case remanded, with directions to overrule the order
quashing the return and to set aside the decree denying the
jurisdiction of the court.
Reversed.