« ForrigeFortsett »
because of the previous ruling on the motion to vacate. Moreover, as it has been settled that the right to review by direct writ of error a question of jurisdiction may not be availed of until after final judgment (McLish v. Roff, 141 U. S. 661), it follows that the contention must be either that there is no right to review at all or that it can only be enjoyed by waiving all defence as to the merits and submitting to an adverse judgment. The contention, however, has been conclusively adversely disposed of. St. Louis Southwestern Ry. Co. v. Alexander, 227 U. S. 218.
Leaving aside the capacity of the person upon whom the summons was served, which we shall hereafter consider, the facts upon which the question of jurisdiction depends are briefly these: The corporation was created by the laws of the State of Ohio, had its principal establishment and business at Toledo and carried on no business in the State of New York unless the contrary conclusion results from the following statement: In 1901 the corporation issued its bonds and secured the same by mortgage. The trustee under the mortgage was The United States Mortgage and Trust Company of the City of New York and the bonds were delivered to that company to be certified in accordance with the provisions of the deed. The bonds were subject to registry and became due and were payable on July 1, 1909, "at the fiscal office of said Company in the City of New York" and the semi-annual interest coupons were also payable "at the fiscal office of said Company in the City of New York." Prior to 1909, when the company defaulted in the payment of the principal and interest on its bonds, the interest coupons were paid at the office of a commercial firm in New York representing the company for such purpose, but that representation wholly ceased after the default and from that date until this suit was brought, about five years later, the company had no office for any purpose in the State of New York and transacted no business therein.
The reason which controlled the court below and the sole contention here relied upon therefore was and is that the provision for the payment of the bonds and coupons at an office in the City of New York constituted a doing of business in New York so as to afford jurisdiction there and that such result continued to operate years after the office for such purpose had ceased to exist upon the ground that, for the purpose of jurisdiction over the corporation, it must be conclusively presumed to have continued to maintain an office in the City of New York for the purpose stated. But we think from either point of view the contention is without merit: The first because the mere provision for a place of payment in the City of New York of the bonds and the coupons annexed to them at their maturity and their payment at such place was in no true sense the carrying on by the corporation in New York of the business which it was chartered to carry on, however much it may have been an agreement by the corporation to pay in New York an obligation resulting from the carrying on by it of its business in the State of Ohio. And this view necessarily disposes of the proposition in the second aspect, since the indulging in the fiction of the existence of an office for the payment of coupons could not produce an effect greater than that which could be produced by the real existence of the office.
So far as concerns the capacity of the person upon whom the summons was served irrespective of the doing of business by the corporation in the State, we do not expressly notice the various contentions by which under such a view jurisdiction is sought to be supported, but content ourselves with saying that we think they are all plainly without merit.
Although what we have said in substance meets and disposes of all the contentions relied upon to sustain the jurisdiction, we have not expressly noticed them all because of their obvious want of merit,-a situation which
is illustrated by the mere statement of a contention made that as the trustee under the mortgage was a New York corporation in whom the title to the mortgaged property for the purposes of the trust was vested, therefore all the property of the corporation must be metaphysically considered to have been translated from the State of Ohio to the State of New York and used as a basis of jurisdiction in such latter State.
Reversed and remanded with directions to dismiss the complaint for want of jurisdiction.
MEISUKAS v. GREENOUGH RED ASH COAL COMPANY.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.
No. 229. Argued May 2, 1917.—Decided May 21, 1317.
The right to challenge the jurisdiction of the District Court over the person of the defendant is not waived by a special appearance for that purpose, by a postponement of the hearing at the instance of the plaintiff for the purpose of enabling him to be fully heard on the subject of jurisdiction reserving the right of defendant to plead to the merits if jurisdiction be sustained, or by an order of the court, sua sponte, directing plaintiff to amend his complaint so as to disclose citizenship more fully before the hearing on the jurisdictional question.
A motion to quash is a proper mode of attacking service and jurisdiction thereon depending in the District Court; the Conformity Act does not require resort to a demurrer for this purpose even though the state procedure does. So held where the motion was based on the grounds that defendant corporation was not doing business or possessed of property in the State and on want of representative capacity in the person served.
Mr. Jesse C. Adkins, with whom Mr. Alvin C. Cass, Mr. Baltrus S. Yankaus and Mr. Frank J. Felbel were on the brief, for plaintiff in error.
Mr. Charles W. Pierson, with whom Mr. Clifton P. Williamson was on the brief, for defendant in error.
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Alleging himself to be a citizen of New York and a resident in the eastern district, the plaintiff in error sued below to recover from the defendant in error the amount of damages alleged to have been by him suffered as the result of an explosion of dynamite while he, the plaintiff, was engaged as a servant of the defendant in working in a coal mine belonging to and operated by it near Shamokin, Pennsylvania. The defendant was alleged to be a corporation created under the laws of the State of Pennsylvania and a resident of that State having its principal place of business at Shamokin. It was alleged, however, as a basis for jurisdiction that the corporation carried on business in the State of New York and had property therein. The summons was personally served upon the president of the corporation who was found in the Borough of Manhattan in the southern district.
Upon the complaint and summons and an affidavit of its president, the corporation, appearing specially "for the sole and single purpose of objecting to the jurisdiction of this court over the defendant in this action," moved "to set aside and declare null, void, and of no effect the attempted service of the summons" upon the ground that the corporation had no property in the State of New York and transacted no business therein and although its pres
ident was personally served while temporarily in the southern district of New York he was there engaged in the transaction of no business for or on account of the corporation and had no authority so to do. A hearing was ordered on the motion. At the hour fixed for the hearing at the request of the plaintiff it was continued, the court, however, in express terms subjecting the continuance to the condition that the defendant should not lose his right to plead to the merits if on the hearing on the question of jurisdiction on the postponed day authority to entertain the cause was sustained. In addition the plaintiff was ordered within six days to file an amended complaint showing whether the plaintiff is an alien or a citizen of the United States, and if a citizen whether native born or naturalized, and the date and place of such naturalization, if any." The amended complaint was filed showing the plaintiff to be an alien and subsequently on the hearing on the motion to quash the summons an affidavit for the purpose of supporting the jurisdiction was filed on behalf of the plaintiff: It is true, however, to say that this affidavit did not rebut the facts as to the non-doing of business and the absence of property of the corporation in the State of New York and the want of authority on the part of its president upon whom the summons had been served to represent the corporation or transact any business in New York in its behalf. The summons was quashed and the suit dismissed and the direct appeal which is before us on the question of jurisdiction was then taken.
Despite some apparent contention to the contrary there is no room for any controversy concerning the facts upon which the court below based its action, that is, the nondoing of business by the corporation in New York and the absence of authority in its president to represent it there. Indeed the argument freely admits this and proceeds upon the theory that although the facts clearly