A Pennsylvania corporation was sued in New York, where it
transacted but a part of its business, upon a cause of action for
personal injuries arising in Pennsylvania, and the summons was
served upon a New York agent which it had designated to receive
service of process, conformably to the New York laws. It moved to
set aside the service as void in that consent to be sued in New
York could be implied only in respect of causes arising out of its
business there, and that the attempt to compel it to respond to the
action was an invasion of its rights under the Constitution,
particularly § 1 of the Fourteenth Amendment.
Held that,
as the motion did not draw
Page 245 U. S. 163
in question the validity of the state law, but only the validity
of the service and the power of the court, consistently with § 1 of
the Amendment, to proceed upon such service, no basis was laid for
reviewing in this Court by writ of error a subsequent judgment on
the merits, but only for application for certiorari. Jud.Code §
237, as amended by Act of Sept. 6, 1916.
Writ of error to review 176 App.Div. 889, dismissed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action in a state court in New York by a resident of
that state against a Pennsylvania corporation
Page 245 U. S. 164
to recover for a personal injury sustained by the former while
employed in the latter's coal mine in Pennsylvania. In addition to
mining coal in Pennsylvania, the defendant was doing business in
New York, and, conformably to the laws of the latter state, had
designated an agent therein upon whom process against it might be
served. The summons was served upon this agent. After an
unsuccessful effort to have the service set aside as invalid, the
defendant answered and the further proceedings resulted in a
judgment for the plaintiff, which was affirmed, without opinion, by
the Appellate Division of the Supreme Court. An appeal to the court
of appeals was denied, and the defendant sued out this writ of
error. A motion to dismiss the writ is made upon the ground that
the judgment, if open to review here, cannot be reviewed upon a
writ of error, but only upon a writ of certiorari.
Under § 237 of the Judicial Code, as amended September 6, 1916,
c. 448, 39 Stat. 726, a final judgment or decree of a state court
of last resort in a suit
"where is drawn in question the validity of a treaty or statute
of, or an authority exercised under the United States, and the
decision is against their validity, or where is drawn in question
the validity of a statute of, or an authority exercised under any
state, on the ground of their being repugnant to the Constitution,
treaties, or laws of the United States, and the decision is in
favor of their validity,"
may be reviewed in this Court upon writ of error; but, if the
suit be one
"where is drawn in question the validity of a treaty or statute
of, or an authority exercised under the United States, and the
decision is in favor of their validity, or where is drawn in
question the validity of a statute of, or an authority exercised
under any state, on the ground of their being repugnant to the
Constitution, treaties, or laws of the United States, and the
decision is against their validity, or where any title, right,
privilege, or immunity is claimed under the Constitution, or any
treaty or statute
Page 245 U. S. 165
of, or commission held or authority exercised under the United
States, and the decision is either in favor of or against the
title, right, privilege, or immunity especially set up or claimed,
by either party, under such Constitution, treaty, statute,
commission, or authority,"
the judgment or decree can be reviewed in this Court only upon a
writ of certiorari. The difference between the two modes of
securing a review, as contemplated by the statute, lies in the fact
that a writ of error is granted as of right, while a writ of
certiorari is granted or refused in the exercise of a sound
discretion.
By a timely motion, the defendant sought to have the service of
the summons set aside upon the ground
"that said service is void, in that the defendant's consent to
be sued in the State of New York by service upon its aforesaid
designated agent, can only be implied with respect to causes of
action arising in connection with business the defendant transacts
in the State of New York; the plaintiff's cause of action herein
did not arise in connection with the business defendant transacts
in the State of New York, but is brought to recover damages for
personal injuries alleged to have been sustained in the State of
Pennsylvania. An attempt to compel the defendant to respond to this
suit in the supreme court of the State of New York, sitting in
Westchester County, is an invasion of the defendant's rights under
the Constitution of the United States, particularly § 1 of the
Fourteenth Amendment of the said Constitution."
The motion was overruled, and the defendant, having first
excepted to the ruling, answered to the merits.
All that was drawn in question by the motion was the validity of
the service and the power of the court, consistently with the first
section of the Fourteenth Amendment -- probably meaning the due
process of law clause, to proceed upon that service to a hearing
and determination of the case. It did not question the validity of
any
Page 245 U. S. 166
treaty or statute of, or authority exercised under, the United
States. Neither did it challenge the validity of a statute of, or
an authority exercised under, any state, on the ground of its being
repugnant to the Constitution, treaties, or laws of the United
States. Challenging the power of the court to proceed to a decision
of the merits did not draw in question an authority exercised under
the state, for, as this Court has said, the power to hear and
determine cases is not the kind of authority to which the statute
refers.
Bethell v.
Demaret, 10 Wall. 537,
77 U. S. 540;
French v. Taylor, 199 U. S. 274,
199 U. S.
277.
It follows that the judgment cannot be reviewed upon writ of
error. If a review was desired, it should have been sought under
that clause of the certiorari provision which reads, "or where any
title, right, privilege, or immunity is claimed under the
Constitution," etc.
Writ of error dismissed.